“Subverting Justice” is a catchy name for the report issued Thursday by the majority staff of the Senate Judiciary Committee, regarding a deplorable attempt by former President Donald Trump to overturn the results of the 2020 presidential election. The interim report — based on persuasive documents and testimony — finds that “[i]n attempting to enlist [the Department of Justice] for personal, political purposes in an effort to maintain his hold on the White House, Trump grossly abused the power of the presidency.”
A more accurate (but decidedly less dramatic) title, then, might be “Ineffectually and Ineptly Attempting to Subvert Justice.” The story of what Trump tried to do is crucially important. So is the story of why he failed. And that story, we now know, includes the principled pushback of senior DOJ officials, who told Trump in a contentious meeting just days before the Capitol riot that they would resign en masse if he continued with his attempt to overturn the 2020 election results.
“Subverting Justice” is a catchy name for the report issued on Thursday by the majority staff of the Senate Judiciary Committee, regarding a deplorable attempt by former President Donald Trump.
I grew up professionally in the Department of Justice, privileged to have served “in the field” and at headquarters, as a federal prosecutor, on the staff of senior DOJ and FBI leaders, as a United States attorney, and in two of its law enforcement agencies — the DEA and the FBI. We were never perfect — no institution with human beings ever is — but we were good at what we did: seek and provide justice. The goal, as one of my colleagues eloquently put it, was to do the right thing in the right way for the right reason, every time.
You also need to know a bit about the structure of “The Department” to understand the context of the Jan. 3 meeting. The DOJ’s political layer, by design, is extraordinarily thin. There are, for instance, 93 United States Attorney’s Offices throughout the country. Some are large, and some are small. What they all have in common, however, is — at most — one political appointee. The balance of the roster in every office is comprised of career men and women who work for presidents and attorneys general of both parties, faithful to the law and to their oath to “support and defend the Constitution of the United States.” Similarly, more than 35,000 people work for the FBI, but only one — the director — is politically appointed.
I have found, too, that political appointees often adapt their behavior to the norms of the DOJ (not the other way around), though many political appointees come from the department’s career ranks, and already know, embrace and breathe its apolitical ethos. That is a fundamental strength of the DOJ, and it means that legally, ethically, practically and culturally, its personnel typically behave in commendable and predictable ways.
As the Senate’s report notes, “[t]he norm that law enforcement must be free from political interference is so critical and so uniformly acknowledged in our system of government that the U.S. State Department regularly cites the politicization of a government’s prosecutorial power as grounds for determining that a foreign power is an “'authoritarian state.’” This concept of apolitical integrity is bipartisan and collectively supported. Trump’s crass and fumbling attempts to undermine democracy aside, our norms held.
Reading the report, I was unsurprised by the former president’s disgraceful behavior. But I was also unsurprised by the behavior of DOJ senior leadership, including much of its political leadership. According to the report, these individuals stood up to the president, in word and deed, pushed back on his craven attempts to turn the department’s prodigious authorities to his personal and political advantage, and threatened to quit if he continued down this foolish and reckless path. Their principled stand prevailed.
Reading the report, I was unsurprised by the former president’s disgraceful behavior. But I was also unsurprised by the behavior of DOJ senior leadership.
But, this stand was not universal. One senior DOJ leader, Jeffrey Clark, seemed eager to do Trump’s bidding — rule of law be damned — and came uncomfortably close to getting himself installed as the acting attorney general. Fortunately, he failed. Other purported villains make cameos from the White House and from elsewhere in government. There is a lot of shameful behavior described in the report and good reason for anyone who cares about the rule of law to be genuinely concerned about a narrow escape from utter and undemocratic chaos.
But the report is also about public servants who acted admirably in this sordid episode — including from the senior ranks of the Justice Department and from White House Counsel’s Office — who honored their oath, advocated for the rule of law, and managed to contain a reckless and foolish president attempting to put his political self-interest above the interests of the nation. Admittedly, some of these individuals could have come forward sooner, perhaps during the second impeachment, to tell us what they knew. But we can leave that criticism aside for now.
Trump — despite the title of the report — did not ultimately subvert justice here, though he certainly tried. Trump did not manage to overturn the valid results of a valid election. Joe Biden is president. And Trump failed because justice — a concept that seems utterly to elude him — is stronger and better and sturdier and smarter than he is. Let us hope it always stays that way.