//  3/9/18  //  In-Depth Analysis

By: Ben Berwick and Ariela Rosenberg, Protect Democracy, @protctdemocracy

Last week, we published an essay on this blog explaining how Trump’s efforts to undermine the independence of the judiciary mirror actions that authoritarians have taken elsewhere to attack the courts. Like authoritarians around the world, rather than accept the courts as a check on authority Trump has looked to discredit and bully them.

As we explain in this essay, Trump’s actions to quash the independence of federal law enforcement likewise mirror the approach of autocratic leaders around the globe. Seemingly each week, Trump breaches the traditions that have ensured that federal law enforcement operates in an even-handed way; our website contains a tracker cataloguing these incidents. Just last week for example, President Trump excoriated Attorney General Sessions over which Department of Justice (DOJ) officials were assessing whether there was any wrongdoing with the FISA process in the Department’s Russia investigation. The blistering tweet called Sessions’ appropriate actions “DISGRACEFUL!” and challenged Sessions to charge a different set of DOJ attorneys with conducting this review.

Why is A.G. Jeff Sessions asking the Inspector General to investigate potentially massive FISA abuse. Will take forever, has no prosecutorial power and already late with reports on Comey etc. Isn’t the I.G. an Obama guy? Why not use Justice Department lawyers? DISGRACEFUL!

— Donald J. Trump (@realDonaldTrump) February 28, 2018

This tweet reflects an alarming trend in the Trump administration. By intervening in law enforcement matters involving specific parties, President Trump and his surrogates are engaging in behavior familiar to authoritarian regimes in other countries. 

Political influence or interference in law enforcement has been a clear hallmark distinguishing authoritarian regimes from true democracies around the globe. Authoritarians regularly prosecute and jail their opponents, use criminal prosecution as a tool for political vengeance, and offer favors for political allegiance. Backsliding democratic countries have witnessed these threats, and such behavior here offers a warning sign for our own democracy. 

Authoritarian Precedents for Politicizing Law Enforcement: Prosecuting Political Opponents 

A look around the world demonstrates that backsliding democracies and authoritarian regimes regularly weaponize law enforcement to solidify their control. One prominent use of a leader’s personalized prosecutorial power is to go after electoral opponents in order to clear the field for elections and squash dissent from opposition parties, their constituents, and the broader public.

Upcoming elections in Egypt, Russia, and Venezuela epitomize this troubling pattern.

This month’s presidential election in Egypt, for example, has been orchestrated as a farcical race between President Sisi and one of his puppets, Moussa Mostafa Moussa. Potential Sisi rivals have been sidelined, jailed, or threatened with prosecution. Four prominent challengers quit the race in past months, including Egypt Strong candidate Abdel-Moneim Aboul-Fotouh, who was recently arrested for media provocation on state security prosecutors’ orders.

Russians will also go to the polls this month to vote for President in what is guaranteed to result in victory for incumbent Vladimir Putin. Putin has similarly cleared the electoral race by prosecuting political enemies, including well-known opposition leader Alexei Navalny. In February 2017, Navalny was convicted for embezzlement, which disqualifies him from running for President. Navalny says the conviction was politically motivated and an elaborate scheme to remove him from the ballot.

In the lead up to the 2018 Venezuelan presidential election this May, President Nicolás Maduro has also locked up his opponents. Last August he detained opposition leaders Leopoldo Lopez and Antonio Ledezma after they boycotted a vote on rewriting the constitution and called for protests. In December, Maduro banned the main opposition parties from running in the 2018 election, further clearing the field for himself.

These brazen abuses of prosecutorial power show the extent to which leaders politicize and weaponize law enforcement to protect themselves and their hold on power. But they don’t happen overnight. Abuses of this magnitude require loyalty and discriminatory enforcement of the law; deterioration of trust in law enforcement; purging of nonpartisan civil service; and buy-in from elites who look the other way or directly enable the political leader to bastardize the rule of law. Unfortunately, we are beginning to see these dynamics develop at home.

Trump’s Attacks on DOJ Fit the Authoritarian Playbook

While several degrees removed, Trump’s repeated calls to prosecute “crooked Hillary” and “lock her up” mimic Sisi’s, Putin’s, and Maduro’s prosecutions of their political enemies and electoral challengers. Trump has requested that the Justice Department pursue a politically-motivated investigation of Clinton, leading Attorney General Sessions to write a letter to the House Judiciary Committee in November 2017 stating that the Justice Department was considering whether to appoint a special counsel to investigate Clinton. Trump has also threatened Clinton top aide Huma Abedin and Clinton Campaign Chairman John Podesta with prosecution. He is only a few steps away from threatening his 2020 electoral challenger.

In addition to attacking his political opponents and impugning the Attorney General, Trump has been systematically working to undermine DOJ’s independence and impartiality. His conduct has raised legitimate questions about whether he has interfered in specific antitrust matters to benefit favored companies (Anthem) and harm those that are disfavored (CNN). He has attempted to thwart Special Counsel Robert Mueller’s investigation regarding Russian interference in the 2016 election. And he has demanded loyalty from various DOJ and law enforcement officials, former FBI Director James Comey, Former Deputy Director of the FBI Andrew McCabe, and Deputy Attorney General Rod Rosenstein prominent among them.

In a well-functioning Administration that respected democratic rule-of-law norms, the White House would abide by and enforce the types of bipartisan policies that have protected DOJ independence, and that are grounded in important constitutional principles. But when the White House breaches its obligation, other institutional actors must use their authorities to protect independent law enforcement. DOJ officials, Congress, and the courts all have a role to play. DOJ officials must resist White House entreaties on specific-party matters and report any entreaties to the proper channels, including the Inspector General. Congress must exercise its various tools — including oversight, legislation, and, if necessary, impeachment — to ensure the White House does not turn law enforcement into a weapon to protect its friends and target its perceived opponents. And finally, the courts can apply established doctrines in specific cases to avoid improper or vindictive enforcement actions or selective prosecutions, and to ensure the president and White House officials cannot exempt themselves from the law.

These other institutions have not needed to exercise their authorities in recent years, because presidential administrations of both parties have committed for 40 years to policies upholding the independence of DOJ. But in the face of a White House that every week reminds us of its disregard for the rule of law principles that govern law enforcement in a constitutional democracy, we need these measures to ensure that the United States does not begin to resemble the Egypts, Russias, and Venezuelas of the world.

Evenhanded law enforcement and freedom from political influence — real or perceived — underpins all of our other freedoms. It is critical for a functioning democracy that it not appear as though politics plays any part in DOJ’s investigative and enforcement operations, for enemy or friend alike. Without equal treatment under the law, our democracy is doomed.

Versus Trump: Versus David Dennison

3/15/18  //  Commentary

On a new episode of Versus Trump, Easha, Jason, and Charlie do a near-live episode about Stormy Daniels' lawsuit against David Dennison—we mean, Donald Trump. Listen now!

Jason Harrow

Equal Citizens

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Hamilton Versus Trump

3/15/18  //  Commentary

'Talents for low intrigue, and the little arts of popularity'

Michael C. Dorf

Cornell Law School

NIFLA v. Becerra: The Conservative Attack on Disclosure

3/15/18  //  Commentary

Disclosure laws further First Amendment values by ensuring that consumers have access to accurate information about their rights to state-funded care and how to access these benefits.