Trump turns the full force of the government on perceived political enemies

Analysis: The president is wielding power in ways not seen in the United States in generations — if ever.
Image: President Donald Trump Departs White House For Holiday Weekend
President Donald Trump talks to reporters while departing the White House on May 24, 2019.Chip Somodevilla / Getty Images

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By Jonathan Allen

WASHINGTON — President Donald Trump found four former federal officials guilty of "treason" Thursday — and then commissioned his intelligence agencies to help the Department of Justice prove it.

At the same time, he is blocking Congress from executing its constitutional duty to execute oversight of his administration, not only with regard to his campaign's ties to Russia and the interference detailed in special counsel Robert Mueller's investigation but also on a host of other fronts.

He's wielding power in ways not seen in the United States in generations, if ever, and which many experts say do not resemble global norms for heads of state.

"This is really a feature of petty dictators, where you see the power of investigation abilities being used as a political tool against enemies," Claire Finkelstein, the director of the Center for Ethics and the Rule of Law at the University of Pennsylvania's law school, said in a telephone interview.

"In this case I believe it is a deliberate attempt to confuse the public, to spin a certain narrative about our intelligence community, to throw pixie dust over the facts surrounding the 2016 election," she said. "And it’s remarkable in my mind that he’s been successful with these tactics" in terms of convincing a significant share of the American public that he is the victim of a "deep state" conspiracy.

On Thursday, Trump gave the names of four people — James Comey, Andrew McCabe, Peter Stzrok and Lisa Page — when he was asked about his past formulation that former federal officials who were involved in investigations dealing with his campaign and that of rival Hillary Clinton were guilty of treason, and reminded that the crime is punishable by death.

Later, the White House issued a statement noting that Trump had directed American intelligence agencies to cooperate with a federal investigation he has ordered into any crimes that might have been committed in relation to those probes and ensuing activity by former FBI and Justice officials. He has delegated the authority to declassify information obtained from the intelligence agencies to Attorney General William Barr, even though the White House is currently fighting a series of congressional subpoenas for information on the Mueller report and a variety of other topics.

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Under the Constitution, treason is defined as waging war against the United States or aiding and abetting an enemy of the nation, and the law has typically recognized "enemies" of the U.S. as countries with which the U.S. is engaged in open and active hostilities.

"He doesn't care about the law," said former federal prosecutor Mimi Rocah, who serves as a legal analyst for NBC News and MSNBC. "He is trying to use the justice system and our intelligence system — he's trying to manipulate them and he has been trying to do that for two years, and now he has Bill Barr helping him, and to me, that is just terrifying."

Individual prosecutors across the country have tremendous power and discretion in terms of who they investigate and seek charges against, she said, and there could be "a chilling effect" on them if they watch the president and the attorney general prosecute people who investigate Trump.

There's already evidence of Barr breaking with norms to aid the president, according to some legal scholars.

"This is the first time in recent memory that a U.S. president has openly called for a criminal investigation into perceived enemies, and the investigation is being carried out," Brian Z. Tamanaha, a Washington University law professor and the author of the 2004 book "On the Rule of Law," said in an email. "This does not happen in countries that respect the rule of law. The concern is heightened in this instance because Attorney General Barr has thus far behaved as if his highest duty is to President Trump rather than to uphold the Constitution and laws."

Tamanaha and others suggest Trump's actions don't appear to be rooted in an interest in upholding justice.

"Countries with the rule of law do not conduct criminal investigations for political reasons," he said. "In countries that lack the rule of law — like Russia — the ruling political officials instrumentally utilize the legal system to target opponents for criminal prosecution as a means of intimidation or punishment."

House Intelligence Committee Chairman Adam Schiff, D-Calif., criticized Trump's move as a dangerous deployment of intelligence capabilities for the political benefit of the president — and phrased his response in lawyerly terms that amount to an allegation that Trump has satisfied Mueller's standard that Trump would have to have corrupt intent in order to be guilty of obstruction of justice.

"The president’s order conferring new authorities over classified information held by the Intelligence community is a corrupt escalation of the president’s intention, with the assistance of the attorney general, to weaponize and politicize the nation’s intelligence and law enforcement entities," Schiff said. “The potential selective release of material that implicates sources and methods will undermine the intelligence community’s efforts to gather intelligence, including on future attacks on our elections as well as other key intelligence targets, putting not only sources at risk, but the nation’s security along with them."

In the hours after Trump was elected in November 2016, Clinton asked her aides to insert lines into her concession speech that would be a subtle caution to the public about the possibility that Trump might try to rewrite the rule of law. She wanted to avoid direct criticism of the president-elect, but she juxtaposed her call to accept his victory with her admonition.

"Donald Trump is going to be our president. We owe him an open mind and the chance to lead," she said the day after the election. "Our constitutional democracy enshrines the peaceful transfer of power and we don't just respect that, we cherish it. It also enshrines other things; the rule of law, the principle that we are all equal in rights and dignity, freedom of worship and expression. We respect and cherish these values too, and we must defend them."

It can be difficult to weigh the events of the moment against longer-term questions of the strength of the rule of law and democratic institutions in a country. The U.S. has declined in recent years in terms of its ratings in global democracy indices.

Shelley Inglis, the executive director of the University of Dayton's Human Rights Center, said that Congress and other institutions are being tested by the president's attacks on them but there also signs that they are holding up.

"It's neither that the world is ending tomorrow, nor is it that everything is fine," said Inglis, who worked in the rule of law unit for the deputy secretary-general of the United Nations. "Of course there is a reason to provide oversight, to question, to use the institutions and the Constitution as they were intended, but not to give the public a perception that the U.S. is declining rapidly in a way that becomes a fulfilled perception."

But for many of his critics, Trump already has made that perception a reality.