On September 1, according to repeated statements by Rudy Giuliani, President Donald Trump’s personal lawyer, Justice Department “rules” say that the Mueller investigation into possible collusion between the Trump campaign and Russia must be brought to a close. Otherwise, as Giuliani has said, Trump and his team will issue a report that will “unload on [Special Counsel Robert Mueller] like a ton of bricks.”
Giuliani’s statements, though, are simply untrue. But so what? It has been well documented that Trump stretches the truth in making his case to the American people; in this sense, Giuliani fits right into the team. Besides, all presidents fib at some point and, to some extent, the public overwhelmingly already finds Trump untruthful.
But, actually, we should pay careful attention to everything Giuliani and Trump say about the investigation. Their false statements about Mueller’s probe are not simply politicians’ white lies; they present a calculated and sustained attack on the independence of our justice system. And when the president actually has the power to take actions that will cause lasting damage to the rule of law — that is, by making his lies true — we all need to listen a little more closely.
First, the facts on the timing of Mueller’s probe: No rule prevents the Department of Justice from working during election season. (Such a rule would necessarily mean that the department would largely shut down between September and November every two years.) Giuliani could have been referring to a regularly-issued departmental guidance — most recently issued by my former boss, Attorney General Loretta Lynch, in April 2016 — governing employees’ conduct during election season.
This guidance urges that prosecutors exercise caution over “the timing of charges or overt investigative steps near the time of a primary or general election.” Over the years, the department has suggested that this cautious period starts about two months before Election Day (which is generally around the beginning of September).
During that period, the department directs prosecutors to seek internal guidance as to how to proceed on public actions like issuing indictments or carrying out search warrants; the goal is to make clear that the department is not in the business of trying to influence elections. Giuliani, as a former United States attorney and associate attorney general — which is third in the department’s hierarchy — knows all of this perfectly well.
And, despite the protestations of Trump and his team, Mueller’s probe has moved quite quickly. According to fivethirtyeight.com, Mueller’s investigation first charged somebody within five months; in other modern special counsel matters, initial charges were brought, on average, after about a year (if at all). Besides, investigations take time: The Whitewater investigation that led to President Bill Clinton’s impeachment ran six years; the perjury investigation of former Housing and Urban Development Secretary Henry Cisneros ran nearly 11. The notion being fed to the public by this administration that the current investigation’s 15 months are unconscionable is silly.
Americans are free to disagree with the merits of the investigation, but they deserve to know that the diligence, competence and integrity of the career individuals running it are not truly open questions.
It is certainly in the president’s interest to skew public perception of the Mueller probe: Any good defense attorney would advise him to try to use public statements to taint prospective jurors or the broader public prior to trial. But the president is not an ordinary litigant; there is no other legal proceeding in which a party being investigated has the power to fire the people investigating him (or their bosses, or even their bosses’ bosses) — let alone the ability to pack the courts with judges who are sympathetic to his point of view on investigating the president.
The president has made no secret of his desire to fire Attorney General Jeff Sessions — a distaste that started with Sessions’s very decision to recuse himself from the Mueller investigation. But whether he fires Sessions and replaces him with someone who would not (or need not) recuse themselves from oversight in the Mueller investigation, Trump has already declared that he believes that he has the power simply to step in and run the Mueller investigation — an action that would be as unprecedented as it would be politically suicidal.
Trump, like any other subject in a criminal case, already has the ability to formally declare that aspects of cases brought against him are unlawful: The Fourth Amendment, for instance, allows defendants to have their cases tossed or evidence excluded when searches are deemed illegal. There is a clear process, established by the text of the constitution, laws passed by Congress, and generations of interpretation by courts, for doing so.
Instead of relying on legal processes once the investigation is complete, though, Trump has repeatedly used his platform to declare the probe illegal, including in an interview on Thursday. The president, though, does not actually have the authority to declare anything “illegal.”
While we might chuckle at the latest breathless tweet from the president (“SAD!”), his statements regarding the investigation regularly carry a subtext about the reach of presidential authority that is dangerous to our ability to remain a free and fair nation. Nearly 45 years ago, Richard Nixon — another paranoid president under cloud of investigation — took actions that altered the course of history and the presidency, based on his view of unfettered presidential authority. We can only hope that the current president does not follow suit.