When President Trump forced Attorney General Jeff Sessions to resign on November 7 and appointed the unqualified Matthew Whitaker as acting attorney general, just about everyone assumed that special counsel Robert Mueller’s Russia investigation was in trouble. Whitaker, after all, had sharply criticized the investigation before coming to the Justice Department. And now he would be supervising Mueller with an array of tools—including the power to fire Mueller, to starve him of funds, and to reverse his important legal decisions—that could slow and maybe kill the investigation.
Trump appeared to think he had found his man. When the Daily Caller mentioned Whitaker in an interview with the president a week after the appointment, Trump responded that the Mueller investigation was “illegal” and “should have never been brought.” A few days later, Chris Wallace of Fox News asked Trump whether he would accept Whitaker’s curtailing the Mueller investigation. “I think he’s astute politically,” said Trump. “I really believe he’s going to do what’s right.”
Many observers interpreted Trump’s appointment of Whitaker as evidence that the fix was in. “This is a constitutional crisis,” said Supreme Court litigator Tom Goldstein, in a brief begging the Court to declare Whitaker’s appointment illegal. Democratic senator Chuck Schumer made a similar claim in urging Congress to act to protect Mueller. Many others were alarmed.
But to date these worries, and Trump’s confidence in Whitaker, have been misplaced. The Russia investigation and its offshoots have charged forward during Whitaker’s first month in office. Last week they reached a new and dangerous place for the president. Mueller’s team revealed that Trump’s former attorney Michael Cohen had disclosed potentially damning preelection links between Russian interests and the Trump campaign and organization, and that Cohen had lied to Congress about Trump’s “Moscow Project.” And New York federal prosecutors essentially accused the president of directing Cohen’s criminal campaign violations for his involvement in paying off women who claimed to have had affairs with him.
These are but the latest in an 18-month-long string of extraordinary achievements by the Department of Justice in investigating the chief executive and his associates despite Trump’s objections, threats, and firings of important DoJ officials. There has been feverish concern that Trump’s actions would destroy the department’s independence. Quite the opposite has happened. Trump’s efforts have failed entirely. And DoJ independence is stronger than ever.
This independence was first on display in March 2017, when Sessions recused himself from any investigation into Russian meddling in the election. Trump had pressured Sessions not to recuse, but the politician-turned-attorney-general refused his guidance and bowed to the norms of the department. The president reportedly went “ballistic” and their relationship was thereafter poisoned.
The next show of DoJ independence came a few months later when Trump fired FBI director James Comey over what Trump later acknowledged was at least in part a response to Comey’s handling of the Russia investigation. Here was an exercise of hard presidential power designed to insulate the president. But the gambit backfired spectacularly.
The following week, deputy attorney general (and Trump appointee) Rod Rosenstein followed DoJ protocol and appointed Robert Mueller as special counsel to lead the Russia investigation. Trump immediately realized the dire implications of the square-shooting former FBI director looking into his business. “This is the single greatest witch hunt of a politician in American history!” Trump tweeted 12 hours later. But Trump was unable to stop the department ostensibly under his control from acting sharply against his interests.
Nor was he able to replace Comey with a crony. After interviewing and considering partisan politicians, Trump bowed to the realities of the confirmation process and settled on Chris Wray, a seasoned DoJ official. Before and after Wray assumed office, the FBI has quietly assisted Mueller as he circles the president.
Since Mueller was appointed, Trump has not stopped berating him and his investigation. In June 2017, amid a flurry of new “witch hunt” tweets aimed at Rosenstein and Mueller, Trump reportedly ordered White House counsel Don McGahn to have Mueller fired. But he backed away when McGahn “threatened to resign rather than carry out the directive,” according to the New York Times. The following month Trump complained publicly about what he called Mueller’s conflicts of interest and out-of-control investigation and refused to rule out firing him. But he never pulled the trigger.
Trump has also hinted that he would fire Rosenstein on numerous occasions. He hasn’t followed through on that threat either, even after it was revealed in September that Rosenstein had floated the possibility of wearing a wire to record the president and invoking the 25th Amendment to remove him from office for unfitness.
These examples present a constitutional puzzle. Article II of the Constitution states, “The executive Power shall be vested in a President of the United States.” As Justice Antonin Scalia said in his much-admired 1988 dissent in Morrison v. Olson, this clause of the Constitution gives the president “complete control over investigation and prosecution of violations of the law.” This is true, Scalia emphasized, “even when alleged crimes by [the president] or his close associates are at issue.”
In theory, then, the president should be able to achieve his goals of shaping or even stopping an investigation he doesn’t like, subject to impeachment by Congress or rebuke at the polls. Trump exaggerated only a bit when he claimed last year an “absolute right to do what I want to do with the Justice Department.” And he wasn’t far off in August when he said of the Mueller investigation: “I could run it if I want.”
And yet to Trump’s titanic frustration, he has not been able to convert his hard power into effective power. Trump has failed because he is inept at exercising executive power, which requires skills of self-presentation, organization, and persuasion that he lacks entirely. He has also failed because of the powerful norms of independence and commitment to the rule of law that have grown up inside the executive branch ever since Watergate revealed how severely it could be corrupted to serve a president’s partisan lawbreaking aims.
These norms took root when Gerald Ford’s attorney general, Edward Levi, wrote policies to ensure DoJ and FBI independence from the president in certain law enforcement and intelligence matters. Every subsequent administration, including Trump’s, has embraced these policies. The special counsel regulations under which Mueller operates are also a descendant of post-Watergate efforts to ensure that DoJ operates at arms-length when investigating executive officials, especially the president.
Much more consequential than paper policies and regulations are the normative expectations they fostered in generations of DoJ lawyers and in lawyers and policymakers throughout the executive branch of government. It is part of the deep culture of the Justice Department to resist influence by the president when he or an associate is under investigation. Every political appointee who assumes office in DoJ feels the heavy responsibility of upholding the departmental integrity that these norms represent. Even lawyers in the White House are influenced by them.
These norms draw important support when politicians and a vigorous press react with alarm to Trump’s intimidations. They are also bucked up by expectations of the outside legal profession to which senior Justice Department officials hope to return after their government service. And they are strengthened by threats from senior officials to resign.
These norms have led Sessions, Rosenstein, Wray, and even McGahn to stand up to the president on the Russia investigation. And thus far they appear to have led Whitaker—Trump’s latest, greatest hope to slow Mueller—to refuse to do the president’s bidding. In the face of a public onslaught that post-Watergate architects of independence could not have imagined, the norms have shown astounding resilience and even growth in the Trump era.
We still don’t yet know precisely what role Whitaker played in last week’s events, and it remains possible that he will try to take steps to inhibit Mueller. It’s also possible that Trump’s nominee for attorney general, William Barr, will do the same—at least if he can get confirmed without Congress extracting pledges of independence akin to the ones it garnered 45 years ago from Nixon’s attorney general, Elliot Richardson, and his replacement, William Saxbe. And Trump can still disrupt Mueller’s efforts with his power to pardon and fire.
But these things can only happen if Trump and his cronies are willing to accept the political costs that they have avoided to date—costs that are much higher now than when Mueller began his investigation last May. Even if Trump decides to absorb these costs, it is too late to contain Mueller. Most of his work is complete and the still-secret information he has collected will be impossible to keep under wraps. Mueller and Rosenstein have decentralized the investigation to other parts of the Justice Department in such a way that even if Mueller’s team were checked, elements of the investigation that are dangerous for Trump would persist.
In short, the remarkable norms of DoJ independence have done their work. The truth about what happened between Russia and the Trump campaign in the 2016 election will come out. And then, as the Constitution envisages, it will be the responsibility of Congress and the American public to decide what to do.
