Donald Trump's assertion that, as president, he could make up charges to prosecute political opponents runs contrary to 40-plus years of U.S. policy on justice

Donald Trump takes questions from the press

 

Polls indicate Americans are concerned that President Joe Biden, at age 80, is too old and has shaky mental acuity that might not allow him to serve a full second term if re-elected. Garbled attempts at public speaking involving Biden's likely opponent, Republican Donald Trump, suggest Americans are worried about the wrong candidate. That is particularly true when you consider the content of Trump's speeches -- on those occasions when you can make out what he is trying to say.

Consider a speech Trump gave at a campaign rally in South Dakota on Sept. 8. Trump was relatively coherent, but what he said -- not the way he said it -- should scare the bejeebers out of anyone who cares about the rule of law and America's democracy. Trump stated that, if elected in 2024, he would have the capacity to prosecute his political opponents, even suggesting he could make up criminal charges against them. This is from a report at meidastouch.com on the event:

Trump mused about the possibility of indicting opponents even when they did nothing wrong, claiming that he would ask his attorney general to "indict him on income tax evasion" and that the Attorney General will just "figure it out."

This is from a report on the event at CNN:

In his remarks in South Dakota – where he accepted the endorsement of Gov. Kristi Noem, a potential vice presidential pick if he is the GOP nominee – Trump complained that he was the victim of “corrupt and blatant” victimization and “election interference.” He said the cases filed against him would “allow” him, if elected president, to call up his attorney general and demand an investigation into his political adversaries. “Indict my opponent, he’s doing well,” Trump said, implying that was exactly what Biden had done. The ex-president used a sarcastic tone in the raucous atmosphere of a campaign rally, so context is important. But given his history of following through on threats, his comments may end up being predictive if he wins in 2024. 

Anyone with a third-grade education should know that's not how our government works -- not even close. But recent reports indicate Trump is not concerned about how government in the U.S. is supposed to work -- in fact, he shows signs of not being interested in governance at all.

Rather he intends to become "president for life," turning his administration into a dictatorship. In fact, Michael Tomasky, editor of The New Republic, says Trump is running for president only because he hopes it will help him stay out of prison. Should that alarm the American electorate? Absolutely, according to the CNN report: 

[Trump] frequently argued as president that he had all but unfettered constitutional power, which is an attitude that is clearly in evidence in three of his indictments – over attempts to overthrow the 2020 election and over his hoarding of classified documents after leaving the White House.

So, when Trump issues threats on the campaign trail, it’s worth listening.

How wildly unlawful is Trump's vision of being able to prosecute his political opponents, even concocting bogus charges against perceived foes who had not violated the law in any way? Here is the short answer: Since the late 1970s, during the post-Watergate era when our country still was reeling from Richard Nixon's scandal-riddled administration, U.S. policy has been that the Department of Justice (DOJ) will operate independently of the White House -- that the president will have no say in the DOJ's charging or non-charging decisions. The Jimmy Carter administration produced the first memorandum spelling out this policy -- and it has been followed by almost every president (of both political parties). From Ronald Reagan to Barack Obama, every president has signed off on the idea that the White House should not influence DOJ decision-making. The only exception might be Donald Trump; it is unclear if the Trump White House followed the law on DOJ independence during his first term -- and he clearly has no intention of following the law during a second term. Here is a memorandum on the subject from the current attorney general, Merrick Garland.  

A 2017 report from protectdemocracy.org spells out the history of DOJ independence from the White House and also addresses reports that the Trump administration might have violated the law:

The promise that every American will be treated equally under the law and that none is above the law is a bedrock principle of American democracy. The freedom from political influence — real or perceived — on law enforcement underpins all of our other freedoms. By contrast, political influence or interference in law enforcement has been a clear hallmark distinguishing authoritarian regimes from true democracies around the globe.¹

For decades, to prevent even the appearance of political meddling in federal law enforcement, Republican and Democratic administrations alike have had written policies governing White House contacts with agencies and offices within the executive branch that have investigatory and enforcement responsibilities. To ensure the impartial application of the laws, these policies have extended to White House contacts with any executive branch agency or office regarding investigations, enforcement actions, regulatory decisions, grants and contracts involving specific parties.

To date, the Trump Administration has not articulated publicly a White House policy on agency contacts. Further, multiple reported contacts between senior political staff at the White House and enforcement officers at the Department of Justice (DOJ) appear to have violated 40 years of accepted, bipartisan policy. In light of the questions that its actions have raised, and in order to demonstrate its commitment to upholding the rule of law, the Trump White House must release and abide by an agency contacts policy that is consistent with accepted, bipartisan norms.

In recent weeks, a number of reports have raised questions regarding whether the White House has in place and is abiding by an agency-contacts policy like ones that have governed White House agency contacts for the past 40 years in both Democratic and Republican administrations. This past weekend, The New York Times reported that White House Counsel Donald McGahn “was working to secure access to what Mr. McGahn believed to be an order issued by the Foreign Intelligence Surveillance Court authorizing some form of surveillance related to Mr. Trump and his associates.”² (The White House later attempted to walk back claims of such an effort). Last month, multiple publications reported that the White House asked the FBI to refute reports that Trump campaign advisors had contacts with Russia during the presidential campaign.³ A week prior to that, the New York Daily News reported that White House senior Adviser Stephen Miller, who is not a lawyer, called the home of Robert Capers, the U.S. Attorney for the Eastern District of New York, to dictate how he should defend the Administration’s travel ban.⁴

There is a long-standing and bipartisan belief that the laws of the United States should be administered and enforced in an impartial manner and, accordingly, that there should not be an appearance that politics plays any part in the Department of Justice’s investigative and enforcement operations.⁵ This is because the effectiveness of the Department of Justice rests on the public’s confidence — and the reality — that DOJ is above ideology and partisanship in its enforcement of the law.⁶

The need for the Department of Justice to be insulated from the reality and the appearance of politics is reinforced in federal law. The Hatch Act places restrictions on the political participation of government employees in certain agencies where it is particularly important that there is no appearance of politicization, like the military and intelligence agencies.⁷ These restrictions apply to career and political appointees in the Department of Justice and FBI.⁸

Stemming from this basic principle that the investigative and prosecutorial powers of the DOJ should be free of partisan influence, it has been consistent policy for 40 years to limit communications between the White House and the DOJ, including the FBI.

As for details about the Trump administration's possible violation of U.S. policy, they can be found at this Time magazine article, under the headline "The FBI Talked to the White House About Its Russia Probe. That Was Probably Against the Rules":

FBI Director James Comey and Deputy Director Andrew McCabe may have violated multiple existing Justice Department rules controlling contacts between the bureau and White House officials when they spoke earlier this month with White House Chief of Staff Reince Priebus about their ongoing investigation into Russia’s influence operation against the 2016 U.S. presidential election, according to several former senior Justice Department officials. 

The first questionable contact came when McCabe spoke with Priebus for five minutes after a 7:30 a.m. meeting at the White House on Feb. 15 on an unrelated intelligence issue. The day before, the New York Times had reported that Trump’s campaign and other Trump associates had multiple contacts with known agents of Russian intelligence in the year before the election.

At the White House meeting, McCabe told Priebus, ‘I want you to know story in NYT is BS,” according to senior Administration officials who briefed reporters on Feb. 24.

Priebus asked McCabe what could be done to push back, saying the White House was “getting crushed” on the story. McCabe demurred, and then later called back to say, “We’d love to help but we can’t get into the position of making statements on every story.”

FBI Director James Comey later called Priebus himself and repeated McCabe’s statements about The New York Times story. Comey also said he was unwilling to speak publicly about the piece but agreed to let Priebus cite senior intelligence officials in his pushback, the officials said.

The back-and-forth may have broken internal rules in place for decades, according to former officials.

While serious, the Comey-Priebus interactions appear to be relatively minor compared to Trump's notion of making up charges to prosecute political opponents.

For one thing, US. policy has been clear for roughly four decades: The president is just that -- the president, and he is not a prosecutor. He is not to play any role in DOJ prosecutions or operations. His staff members are not to play any role.

Trump clearly does not grasp this, and his public statements indicate he has no intention of learning about it. 

Does this suggest a second Trump administration would be even more lawless than the first? The answer almost certainly is yes.