Using the Justice Department to Investigate Trump's Enemies

Amid an otherwise rough week for the Trump administration, the White House got two pieces of good news Friday afternoon. First, The New York Times reportedthat the FBI was once again investigating the Clinton Foundation, apparently asking about potential quid pro quos involving donations and actions by then-Secretary of State Hillary Clinton. Second, two Republican senators sent a letter to the Justice Department recommending an investigation into the author of the infamous Trump dossier.

The reported movement related to the Clinton Foundation re-opens an investigation closed in 2016 by career Justice Department staff, who deemed there was not enough to go forward. But suggestions of corrupt dealing involving the foundation and the Clinton-headed Obama State Department have been a staple of conservative media for years. On Thursday, The Daily Beast reported that DOJ was also reconsidering the investigation into Clinton’s use of a private email server and address, which was closed without charges in summer of 2016, then reopened and quickly shut just before the election—potentially costing Clinton the presidential election, according to some analyses. It’s unclear whether there is any new evidence involved in either direction.

The Justice Department referral by Charles Grassley, chair of the Senate Judiciary Committee, and Lindsey Graham, a member of that committee, is even more opaque. The letter suggests that the Justice Department consider whether Christopher Steele, a former British intelligence officer who compiled the dossier, lied to federal officials. Anyone can make a referral, though a letter from two senior senators on the panel that oversees the department is bound to get special attention in the halls of Main Justice. What is curious, as the Times points out, is that while the Grassley/Graham letter is vague, it appears to call attention not to allegedly false comments that Steele made to congressional investigators, but to the FBI itself. If Steele lied to the FBI, one would expect the FBI to know, and to pursue charges.

That’s what happened in the cases of former Trump National-Security Adviser Michael Flynn and Trump campaign aide George Papadopoulos, both of whom have recently pleaded guilty to lying to the FBI. Grassley made that comparison explicit in a statement. “If the same actions have different outcomes, and those differences seem to correspond to partisan political interests, then the public will naturally suspect that law enforcement decisions are not on the up-and-up,” he said.

In other words, Grassley is accusing the FBI of pursuing a politically motivated case. That’s also exactly what Democrats say Grassley and Graham are doing with the referral.

There is a strange reversal at play in both news stories. There is widespread agreement that the Russian government interfered in the 2016 election, and there is copious evidence that members of the Trump team colluded with Russians and tried to cover it up. As the Justice Department focuses on the Clinton Foundation, the sitting president has refused to divest himself from his companies and may be profiting from them through his actions as president. Both the Friday stories are orchestrated by administration allies and effectively deflect attention from allegations against the Trump administration and campaign.

The Clinton investigations are especially unusual. As a candidate, Donald Trump promised to investigate his opponent if elected—a form of retribution behavior common in failed states with weak rule of law. After his victory, he dropped those promises, but as the Russia investigation has become more threatening to him, he has become more and more agitated about it, and has publicly demanded to know why the Justice Department hasn’t acted.

Although the president is the head of the executive branch and selects the attorney general, it has been taboo for a president to direct the department to launch specific investigations since Richard Nixon’s Watergate-era abuses—a taboo that’s especially strong in the case of one’s political enemies, as in the Trump-Clinton case. (Trump has acknowledged this norm in the past, but blithely disregarded it anyway.) Justice Department leadership is well aware of what Trump says, and it would be disturbing if they took up the case only because of presidential urging. It is, however, not clear why they have reopened the investigations, or whether they have fresh information.

The investigation might even produce evidence of crimes. That’s true of the Steele case, too—if he lied to the FBI, one would expect a prosecution, though no public evidence so far indicates he did. The focus on the Clinton Foundation and on Steele resemble fishing expeditions, but then again Trump’s allies insist that Robert Mueller’s probe is a fishing expedition, too, even if it has turned up some guilty pleas. From the Trump-ally point of view, there’s not much difference. Aren’t Democrats pushing investigations into Trump doing so for political reasons, too? And isn’t it the job of the voter-accountable Congress to conduct oversight of the career bureaucrats at the Department of Justice? Of course it is—a few some Democrats endorsed just last month, demanding answers about anti-Clinton bias in the FBI.

Trump and his allies have had little luck in slowing down or stopping the Mueller probe, but they have muddied the waters enough that it’s difficult to tell for certain whether something is merely a deflection, is an actual case of bad behavior, or some hybrid of the two. Without knowing more about why Grassley and Graham referred the Steele case to DOJ, it is especially hard to tell, and the letter seems to be premised on non-public information.

The Clinton cases seem more like a more obviously worrisome example of presidential interference to punish a political enemy, but there’s always the chance that there might be bona fide criminal conduct. Where Trump can’t prevent a damaging investigation into himself, he can at least create a fog of confusion.