The Rot at the Department of Justice

Almost exactly one year ago, I wrote this post about the resilience of the Department of Justice in the face of president Trump’s onslaught. I argued that although Trump had repeatedly tried to thwart the Mueller investigation, he had been largely unsuccessful due to the strength of the norms mandating that DOJ criminal investigations be free from White House interference. And like many others, I was cautiously optimistic that this would continue under the new Attorney General, William Barr. I wrote:

Whatever you may think of his policies, Barr is a serious person and former Attorney General who understands his role. Once again, if Trump thought that by appointing Barr he was installing someone who would make protecting the president his top priority, I think he is going to be disappointed.

Yikes. You have to grant me this: when I blow it, I really blow it. It took Barr only a few months to prove how spectacularly wrong I was.

Under Barr, the norms of DOJ independence have been shredded. He repeatedly acts like a personal attorney for the president, not like an Attorney General charged with safeguarding the rule of law for the entire country. Barr and Trump have deployed DOJ as a weapon to advance Trump’s political interests and petty personal feuds. And Barr has personally intervened, in an unprecedented way, in criminal cases involving the president’s cronies.

There’s an old saying that a fish rots from the head down. Well, the head of the Department of Justice is rotten. The only question now is how far the rot will extend, and how long it will endure once Barr and Trump are gone.

Richard Nixon
President Richard Nixon

The Tradition of DOJ Independence from the White House

Under president Richard Nixon, the Department of Justice was weaponized and used to further the president’s political interests. Nixon’s Attorney General John Mitchell went to jail for his role in Nixon’s crimes and the subsequent cover-up. Nixon’s case highlighted the dangers of allowing a president to use the awesome power of DOJ, including the power to control criminal investigations, to serve his private political interests. As part of post-Watergate reforms, a figurative wall was erected between the White House and DOJ when it came to criminal investigations.

In the nearly fifty years since Watergate, DOJ criminal investigations have been largely insulated from political influence by the White House. As a general rule, discussion of individual criminal cases between a president and the attorney general has been considered off limits, and presidents generally avoid weighing in on the merits of particular criminal cases. No one claims this rule was never stretched or breached, of course, but in general, administrations of both parties recognized that this norm of DOJ independence was important and worthy of respect.

The example from my own experience that this always brings to mind involves the prosecution of former Illinois Congressman Dan Rostenkowski. Rosty was the chair of the House Ways and Means Committee and one of the most powerful Democrats on Capitol Hill. When Bill Clinton defeated George H.W. Bush and was elected president in 1992, I was part of a team of prosecutors at the U.S. Attorney’s Office in Washington, D.C. in the midst of a lengthy criminal investigation of Rostenkowski for looting various accounts at the House of Representatives.

Rosty was a key political ally of Clinton’s and was critical to his (ultimately unsuccessful) efforts to pass health care reform. But there was never even a suggestion that we should back off the investigation in order to further Clinton’s political goals. None of us involved in the case even really gave that possibility a moment’s thought — we knew that was not how DOJ operated. The investigation, begun under a Republican administration and Republican U.S. Attorney, was completed under a Democratic administration and Democratic U.S. Attorney. Rostenkowski was indicted, convicted, and sent to prison. As Eric Holder, Jr., who was the U.S. Attorney at the time, recently confirmed, there was never any interference from the White House.  That’s how it’s supposed to work.

Jeff Sessions
Former Attorney General Jeff Sessions

Trump’s Early Attempts to Breach the Wall

It was always clear that Trump has no appreciation for the importance of DOJ independence and simply sees the Department, like the government in general, as a tool to be used to benefit himself. Even before he was elected, he threatened that he would direct his Attorney General to prosecute Hillary Clinton and that she would “be in jail” if he became president. Trump spoke repeatedly about wanting an Attorney General who would protect him like Roy Cohn, his former personal lawyer and chief counsel for the McCarthy hearings. Trump thought he had found that when he picked Alabama Senator Jeff Sessions, one of Trump’s earliest and most steadfast supporters, to be his attorney general.

But Sessions, a former United States Attorney, resisted Trump’s efforts to use DOJ to serve his personal interests. When questions arose about his own contacts with Russian officials, Sessions properly recused himself from all matters involving the Russia investigation, which infuriated the president. According to the report by Special Counsel Robert Mueller, Sessions thereafter repeatedly resisted entreaties from Trump to “un-recuse” himself so that he could step back in and shut down the Mueller investigation. Sessions maintained the independence of DOJ in other ways as well. For example, his DOJ indicted two Republican members of Congress in the fall of 2018, shortly before the mid-term elections – an act for which the president, naturally, criticized him on Twitter.

During the first two years or so of Trump’s presidency, others who also respected the tradition of DOJ independence thwarted his efforts to interfere with the Mueller probe. Trump requested “loyalty” from FBI Director James Comey, and later asked him to go easy on Michael Flynn, Trump’s former national security advisor, who was ultimately convicted of lying to the FBI about his Russian contacts during the campaign. When his efforts to pressure Comey failed, Trump fired him. That didn’t work either, because Deputy Attorney General Rod Rosenstein, another career DOJ employee, promptly appointed Mueller as special counsel.

The Mueller report also details how White House Counsel Don McGahn resisted Trump’s efforts to obstruct justice. At one point Trump demanded that McGahn have Mueller fired, but McGahn refused to follow that order and was prepared to resign in protest if necessary. Trump later ordered McGahn to create a document falsely denying that this had ever taken place, and McGahn once again refused.

The Mueller investigation proceeded to its conclusion largely unimpeded. Trump was able to do little more than rage-tweet incessantly about the “witch hunt.” There were some guardrails still in place, people who would stand up to Trump’s improper demands – or at least fail to carry them out until he moved on to something else. Trump’s efforts to bend DOJ to his will were largely unsuccessful. That’s what I wrote about in that earlier post.

Now all that has changed.

Attorney General William Barr
Attorney General William Barr

Barr’s Politicized Department of Justice

After more than a year with Barr as the Attorney General, it’s become clear that he has no intention of upholding DOJ’s tradition of independence from White House influence. On the contrary, Barr appears only too willing to use the power of DOJ to protect the president and advance Trump’s personal political interests.

The first real sign of trouble was Barr’s handling of the Mueller report. His incredibly misleading press conference and letter after he had received the final report “spun” the results and created the impression that Mueller had found no wrongdoing by the president. Although Mueller had declined to make a call on obstruction of justice, Barr himself declared that there had been no obstruction. When the report was finally released weeks later, it became apparent how misleading Barr’s characterization of the report had been, but by that time the “no obstruction, no collusion” narrative was firmly implanted in the public’s mind.

There have been many other troublesome events. For example, in the wake of the phone call with the president of Ukraine that ultimately resulted in Trump’s impeachment, DOJ quickly concluded there was no campaign finance violation and did not even investigate the possibility of bribery, which was clearly implicated by the call. During the Trump administration’s ongoing battles with Congress, Barr’s DOJ has repeatedly supported the administration’s complete refusal to cooperate  with Congressional oversight and blanket assertions of absolute immunity prohibiting testimony by any administration officials. In court pleadings, DOJ has argued that Congress essentially lacks the power to investigate any possible criminal misconduct by the president. Barr announced he has created an intake process to accept information from Rudy Giuliani about the Bidens and Ukraine, part of the efforts that led to Trump’s impeachment. He has appointed another U.S. Attorney, John Durham, to examine whether the investigation into Russian interference in the 2016 election was begun improperly, part of Trump’s claim that the entire Russia investigation was a hoax.

But in recent weeks, it’s been Barr’s interference in the criminal cases of Trump allies who were prosecuted by Mueller that has really set off alarm bells about the lack of DOJ independence.

Roger Stone
Roger Stone

The Roger Stone Case

Republican political operative and Trump advisor Roger Stone was convicted by a jury last November of seven felony counts of lying to Congress, obstruction of justice, and witness tampering. The jury found that Stone repeatedly lied to a Congressional committee about his role as an intermediary between the Trump campaign and Wikileaks concerning the stolen Democratic emails that were released in the weeks leading up to the 2016 election. Stone also threatened another witness, Randy Credico, including sending text messages telling Credico to “prepare to die” and threatening to harm Credico’s dog.

The federal sentencing guidelines call for Stone to be sentenced to between 7 and 9 years in prison. That’s a pretty stiff sentence for this kind of case, but it was largely driven by the threats to a witness and by the pervasiveness of Stone’s misconduct. The sentence was calculated by the U.S. Probation Office, which prepares a pre-sentence report for the judge that includes the guidelines calculations.

The career prosecutors who convicted Stone filed a sentencing memorandum on Monday, February 10. They took a pretty hard line on Stone and his misconduct, and agreed that a sentence within the guideline range recommended by the probation department would be appropriate. At the same time, they acknowledged the court might find that some of the guidelines enhancements should not apply, and that such a finding could result in a lower sentence. Overall, it was a tough but measured position and, considering that it was right in line with probation’s recommendation, it was certainly nothing unusual. In fact, they were following DOJ policy; Sessions had issued a memorandum in 2017 instructing prosecutors that in most cases they should request sentences within the guideline range.

But at around 2:00 am the following day, Trump tweeted out what he thought about the proposed sentence:

Hours later on Tuesday, senior DOJ officials announced that they thought the proposed sentence “extreme, excessive, and grossly disproportionate” and that they would be filing a new sentencing memorandum. That memorandum was filed later on Tuesday, with the Department now recommending a much lower sentence. On Wednesday, Trump tweeted out a congratulations to William Barr for “taking charge” of the Stone case.

The Tuesday Night Massacre

None of the names of the four career prosecutors who worked on the Stone case appeared on the new sentencing memo. They all moved to withdraw from the case in protest, and one of them quit the Department of Justice entirely. Some have dubbed this the “Tuesday Night Massacre,” a reference to the Watergate “Saturday Night Massacre” when Nixon’s Attorney General and Deputy Attorney General both resigned rather than carry out his order to fire Watergate special prosecutor Archibald Cox. (In this sequel, the role of Solicitor General Robert Bork, who ultimately agreed to fire Cox, is played by John Crabb, Jr., a supervisor at the U.S. Attorney’s Office, who signed the pleading after the other prosecutors refused and quit.)

Barr subsequently claimed in an interview that he had already decided to intervene in the Stone case before Trump’s tweet, and that he had no communication with the White House about it. But even if true, that’s beside the point. Everyone, including Barr, could predict how Trump would react to Stone’s proposed sentence. And there is absolutely nothing unusual or extraordinary about Stone’s case that would justify the personal attention of the Attorney General.

Former DOJ officials have been commenting on social media about how many cases they can recall where the Attorney General personally intervened about a sentencing recommendation. So far, the total for everyone I’ve seen – including me – is zero. And it would be ridiculous to suggest that Barr suddenly developed a newfound concern about the harshness of the federal sentencing guidelines. There’s no plausible explanation for Barr’s intervention other than that it was done to appease the president and try to cut one of his political cronies a break.

Michael Flyy
Michael Flynn

The Michael Flynn Case

The case of Michael Flynn, Trump’s former national security advisor, has seen some strange twists and turns. Flynn pleaded guilty to one count of lying to the FBI about his contacts with the Russian ambassador in the weeks leading up to Trump’s inauguration. He agreed to cooperate with the Mueller investigation. At the time of his initial sentencing date in December 2018, prosecutors told the court that Flynn’s cooperation was extensive and they did not oppose a sentence of probation. However the judge did not seem satisfied, and looked like he was poised to send Flynn to prison anyway. The sentencing was then continued to allow Flynn to cooperate further by testifying in the trial of his former business associate about their work on behalf of Turkey.

Leading up to that trial, however, prosecutors decided Flynn was lying to them, and they never put him on the stand. They went back to his sentencing judge and withdrew their recommendation of a sentence of probation, arguing for a sentence within the guideline range – which was still only 0-6 months.

Flynn’s new lawyer, Fox news regular and conspiracy theorist Sydney Powell, flipped out (that’s a legal term). She filed motions to withdraw Flynn’s guilty plea and to dismiss the case entirely, accusing prosecutors of gross misconduct. Prosecutors responded to those motions by returning to their earlier recommendation of a sentence of probation. That seemed odd, but not earth-shattering, since probation was always an option within the recommended guideline range.

But now it appears Barr may have had a hand in that reversal as well. There are reports that Barr has appointed an outside prosecutor to review the entire Flynn prosecution. And during the time the government softened its sentencing position, Trump removed the U.S. Attorney who had convicted Stone, Jessie Liu, and replaced her with Timothy Shea, a former close aide to Barr. The government’s backing off harsher sentencing recommendations as to both Stone and Flynn coincides with the arrival of Barr loyalist Shea as the acting U.S. Attorney.

The Fallout from Barr’s Actions

Barr’s very public interference with the criminal investigations of Trump’s political cronies has resulted in some extraordinary blowback. More than 2,000 former DOJ employees, from both parties, have signed a letter demanding that Barr resign. Barr’s former colleague in the George H.W. Bush Justice Department, former Deputy Attorney General Donald Ayer, wrote an article in the Atlantic demanding the same thing. The Federal Judges Association convened an emergency meeting to discuss the “deepening crisis” involving Barr and the DOJ. There are rumors that Barr is thinking about resigning, although I find that very hard to believe.

Trump, meanwhile, tweeted that he believes he has every right to intervene in criminal cases prosecuted by DOJ:

As disturbing as this Tweet may be, Trump is technically correct: there is no law that prohibits such interference. Only the norm of DOJ independence, and our traditional adherence to the rule of law, stand in his way. This norm is what separates us from authoritarian regimes, where leaders use criminal prosecution as a political weapon against their enemies. Events over the past year have shown us what a fragile norm that is, and how easily it can be discarded by an administration with no regard for the rule of law and concerned only about maintaining power.

You have to wonder what else might be coming between now and the election. What will become of all the other investigations that were referred out by Mueller, and with the ongoing investigations in the Southern District of New York that may implicate Trump, his business, his family, and his close associates? There seems little reason to be confident that they will be allowed to proceed unimpeded.

It also now seems entirely predictable that, at some point later this year, we are going to hear an announcement from DOJ of some kind of investigation that benefits the president. Maybe it will be a criminal investigation of whoever ends up being Trump’s Democratic opponent, or a report concluding that the entire Russia investigation was a sham and part of a “deep state” effort to take down Trump. Under Barr, the politicization of DOJ appears to be nearly complete.

There are still a few guardrails remaining. One is the independent judiciary. The judges in the Stone and Flynn cases will have the final word on their sentences, regardless of the DOJ recommendations – although Trump will, of course, always have the final card to play in the form of a possible pardon. And the dedicated career people at DOJ, who still believe in its mission, will continue to fight and protest from the inside. Perhaps more will follow the lead of the Stone prosecutors by stepping down rather than agreeing to go along with Barr’s corruption.

One day, one way or another, Trump and Barr will be gone. I hope that DOJ can recover from the damage they have done. It’s not easy to restore public trust once an institution’s integrity has been so badly tarnished. But the country did it after Watergate, and hopefully it can do it again. If not, then the damage to our system of justice and belief in the rule of law may become one of the most tragic legacies of the Trump administration.

Trump, Obstruction, and the Resilience of the DOJ

This week the New York Times published a lengthy report on president Trump’s “two-year war” against the various investigations surrounding him. The report details Trump’s repeated efforts to undermine the special counsel investigation and other criminal probes of him and his campaign. The pattern of conduct by the nation’s top law enforcement officer is unprecedented and extremely troubling. But what doesn’t get enough attention is how little effect the president’s attacks have actually had. The Department of Justice has proven remarkably resistant to president Trump’s efforts to obstruct justice.

Trump’s statements and actions (or attempted actions) are often likened to those of the authoritarian leaders whom he seems to admire. Certainly leaders in a totalitarian country  have little difficulty manipulating the legal system to protect themselves and punish their enemies. But standing in Trump’s way in this country has been his own Department of Justice, along with the independent judiciary. The president has found it much more difficult to bend the rule of law to his will than he probably imagined.


Former Attorney General Jeff Sessions

Former Attorney General Jeff Sessions

Step One: Picking Jeff Sessions

The first example of the president’s efforts to manage the investigations into his own conduct took place before he was even sworn in, when he selected Jeff Sessions to be his Attorney General. Sessions, then a senator from Alabama, was one of Trump’s earliest and most steadfast supporters. With allegations about the Trump campaign’s interactions with various Russians already swirling, the president apparently believed Sessions would protect him as Attorney General.

But Sessions quickly faced legal issues of his own related to the FBI’s Russia investigation. He had private contacts with the Russian ambassador during the campaign, and there were allegations he may have committed perjury by concealing those contacts during his Senate confirmation hearing. On March 2, 2017, Sessions concluded that his own potential involvement required him to recuse himself from overseeing the Russia investigation.

Sessions’s need to recuse himself was clear, not a difficult call. But it infuriated Trump, who continued to talk about it for the next eighteen months while he repeatedly criticized and humiliated his own Attorney General.  At one point Trump said he never would have given Sessions the job if he had known he would recuse himself.

Trump thought he had found in Sessions someone who would place personal loyalty over the law and wouldn’t be afraid to cut a few ethical or legal corners to protect the president if necessary. But Sessions, who was also a former United States Attorney, was not that man. Whatever else you might say about his time as Attorney General, Sessions respected the institution of the DOJ and the rule of law by his recusal. I’d argue it was perhaps his finest moment.

Pressuring James Comey

Next came president Trump’s attempts to influence former FBI director James Comey. In Senate testimony and in his book, Comey has reported how the president asked him for “loyalty,” which Comey refused to promise. At a meeting after national security advisor Michael Flynn was forced to resign based on his lies about his Russian contacts, Trump reportedly cleared the room to speak with Comey alone. According to Comey, Trump said Flynn was a “good guy” and essentially asked Comey to drop the investigation into Flynn. Comey, a career DOJ and FBI official, not only refused to give any such assurances but was clearly appalled and shaken by the request.

As with Sessions, it appears Trump valued Comey’s  “loyalty” over any sense of independence or fealty to the rule of law. Once again, he was disappointed. Flynn ultimately was prosecuted, pleaded guilty, and has cooperated with the special counsel investigation.

Former FBI Director James Comey

Former FBI Director James Comey

Firing Comey

Firing James Comey is the act most frequently cited as possible obstruction of justice by the president. Allegations of obstruction were fueled by Trump’s own statements, when he told Lester Holt of NBC that he fired Comey in part because of the Russia investigation. Trump also told two Russian officials, in the Oval Office, that firing Comey had relieved pressure on him from the investigation.

But if Trump hoped that firing Comey would somehow derail the Russia investigation, he was very much mistaken. In fact, just the opposite occurred. Concern over Comey’s firing and Trump’s possible motivations for it ultimately led Deputy Attorney General Rod Rosenstein to appoint the special counsel, Robert Mueller, about a week later. The Russia investigation continued, and grew, under the new acting FBI director. There’s no indication that firing Comey had any negative impact on the investigation of the Trump campaign’s possible ties to Russia.

The justice system is bigger than any one person. If you fire the FBI director, the pending investigations being conducted by career professionals don’t simply go away. Ironically, this could end up being a defense for Trump to any obstruction of justice allegation. Obstruction requires an act that would have the “natural and probable effect” of obstructing the proceeding. Trump has a decent argument that firing the FBI director would not qualify as obstruction because there would be no expectation that doing so would end, or even impede, any particular investigation being handled by the FBI.

Attacks on Mueller and Rosenstein

The president has been unrelenting in his attacks on Mueller, Rosenstein, and the Russia investigation. On Twitter he repeatedly rails against the “witch hunt” being conducted by Mueller and his team of “angry Democrats.”  (Mueller is a life-long Republican, and the “witch hunt” so far has resulted in indictments of about three dozen people, which is a lot of witches.) The Times report found that Trump has publicly attacked the Russia investigation more than 1100 times.

But Rosenstein, another career DOJ official,  has repeatedly defended the Mueller probe. Mueller, a former head of the FBI and senior DOJ official, has simply kept his head down and done his job, commenting only through the cases that he brings. There’s certainly no sign Mueller’s team has been cowed or deterred by the president’s attacks. The president has violated all kind of norms about respecting the independence of the Justice Department and not commenting on criminal investigations. Those norms should be doubly powerful when the president himself is a subject of the investigation. But there’s no indication Trump’s disregard of those norms has actually impeded Mueller’s probe.

For all that Trump may have threatened to fire Mueller and/or Rosenstein, that hasn’t happened. Seasoned lawyers and professionals in his administration apparently have been able to convince him that would be a bridge too far and would lead to consequences even more severe than firing Comey. Cooler heads have been able to convince the president to avoid another “Saturday Night Massacre.”

Replacing Jeff Sessions

Shortly after the 2018 elections, president Trump forced Sessions to resign and appointed Matt Whitaker as acting attorney general. This meant Whitaker, who was not recused from the Russia investigation, would take over from Rosenstein as the person overseeing the Mueller investigation. Whitaker had been Sessions’s chief of staff, was not Senate confirmed, and was not in the ordinary chain of command for appointing an acting attorney general. He had also made public comments extremely critical of the special counsel probe.

This caused a full-scale freak-out by Democrats convinced Whitaker was being installed so he could kill the Mueller investigation. At the time, I argued the panic was premature. I believed the institutional norms protecting criminal investigations and the independence granted to the special counsel would make it extremely difficult for Whitaker to thwart Mueller’s investigation. It seemed pretty clear Whitaker was a lightweight who was in over his head. If he were in a room with seasoned DOJ pros Mueller and Rosenstein disagreeing about where the investigation should go, my money was on Mueller and Rosenstein. I also noted Mueller is a professional who, if he really felt he was being impeded, would almost certainly resign and go public or find some other way to make that known. Finally, the Mueller investigation had already gone pretty far down the tracks, and I doubted there was much Whitaker or anyone else could do to derail it at this point.

Whitaker has now been replaced by Attorney General William Barr, and there’s no sign that in his three-month tenure Whitaker did anything to hurt Mueller’s investigation. For what it’s worth, during his fairly disastrous recent Congressional testimony Whitaker denied that he had taken any steps to impede the special counsel. As far as we can tell, that appears to be true. Even if Whitaker would have liked to restrict Mueller somehow, it was not a realistic possibility for him.

Attempted Interference with the Southern District of New York

Another critical factor that shields the investigations involving the president from his interference is the involvement of prosecutors in the Southern District of New York. Mueller has handed off to New York prosecutors investigations of matters that do not directly relate to his probe. This includes the campaign finance investigation of “hush money” payments to women. Trump’s former personal attorney Michael Cohen pleaded guilty in that case and said the president himself directed him to make those payments. A second matter is the grand jury investigation into the president’s inaugural committee, which is suspected of possible misuse of funds and acceptance of illegal foreign contributions. Prosecutors in New York just issued a massive grand jury subpoena to the inaugural committee seeking records related to that inquiry.

Having those investigations resident in the Southern District of New York is another way in which the structure of the Department of Justice insulates the cases from presidential meddling. It’s true the U.S. Attorney’s Office is still part of the Department of Justice, but there is an extra layer of insulation and structural separation there, as compared to lawyers working at Main Justice in Washington. This is probably particularly true of the SDNY, which is so well-known for being fiercely independent that its nickname is the “Sovereign District of New York.”

After Trump fired the former SDNY U.S. Attorney Preet Bharara, he appointed Geoffrey Berman to head that office. Berman is a former law partner of Rudy Giuliani’s and is perceived to be a Trump loyalist. However, when the FBI raided the home and offices of Trump attorney Michael Cohen last spring, we learned that Berman was not involved in the Cohen investigation because career DOJ officials had determined he had to be recused. As with Sessions, if Trump thought he had someone in place who would protect him, the culture of the DOJ prevented that from happening.

The New York Times report discusses a previously undisclosed incident where Trump reportedly asked Whitaker whether Berman could “un-recuse” himself and take control of the New York investigations. It’s unclear whether this ever went further than an idle conversation, but Whitaker quickly understood that was not an option and it didn’t happen.

Even if Trump had been able to interfere with or fire Mueller, the investigations being conducted by the professionals in Mueller’s office would not simply vanish. And the separate investigations in New York would be completely unaffected. In fact, the SDNY may ultimately pose a greater threat to Trump than Mueller. Unlike Mueller, their jurisdiction is not limited to one topic; they can investigate anything related to Trump and his business that happened in their district – which is Manhattan, Trump’s home base. And the prosecutors in that office are skilled, experienced, and famously relentless.

Attorney General William Barr

Attorney General William Barr

Barr Takes Over

Now there are worries about the new Attorney General William Barr, who while in private practice wrote a lengthy memo extremely critical of the Mueller investigation. At his confirmation hearing, Democrats expressed concerns over whether he would allow Mueller to finish his work. Barr, who considers Mueller a friend, pledged that he would. I don’t think we have any reason to believe the contrary. Whatever you may think of his policies, Barr is a serious person and former Attorney General who understands his role. Once again, if Trump thought that by appointing Barr he was installing someone who would make protecting the president his top priority, I think he is going to be disappointed.

As I write this, there are new reports coming out that Mueller may be delivering a report to the Attorney General as early as next week. That has led to yet more speculation that Barr may have moved to kill the Mueller investigation as soon as he was sworn in. I suspect that these fears will prove to be groundless. If it’s true that Mueller is really finishing up (and I have my doubts), I think we can be confident it’s because this is the timing he chose and that he has been allowed to complete his work unimpeded.

Was it Obstruction?

Legally, whether Trump actually obstructed justice does not matter. The law prohibits corruptly endeavoring to obstruct a proceeding, whether or not the endeavor was successful. So if there is a criminal obstruction case to be made, it won’t falter simply because Trump’s efforts did not succeed. But it’s encouraging to see just how difficult it has been for Trump to actually hamper the many investigations swirling around him.

Individuals including Sessions, Comey, and Rosenstein may be criticized for particular actions. But as an institution, the Department of Justice has shown itself to be remarkably resistant to the president’s attacks. There is tremendous institutional gravity within the Department concerning its mission and independence. This is understood by all those who have worked there, although frequently doubted by those who have not. Particular leaders and political appointees may come and go, but the history and norms that protect the rule of law live on in the thousands of career professionals who work at DOJ.

In a time when so much of government seems to be dysfunctional, the Mueller probe and the DOJ handling of the other investigations involving the president have stood out as examples of a critical government institution functioning as it should. That the investigations of Trump have persisted in the face of an unprecedented onslaught by the president and his supporters is a testament to the strength of our legal institutions. That is something to celebrate.

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