Jan. 6: Congress

Why the Jan. 6 Committee Is Talking About Justice Department Independence

By Quinta Jurecic
Wednesday, July 6, 2022, 10:01 AM

Again and again in recent years, current and former Justice Department officials—along with academics, journalists, and other commentators—have struggled to explain to the public the importance of Justice Department independence: the idea that the powers of law enforcement should not be wielded as a tool of political power. Donald Trump attacked this norm again and again during his presidency—asking the FBI to back off its investigation into his national security adviser, Michael Flynn; working to undermine the Mueller investigation; demanding that the Justice Department investigate Hillary Clinton; and on and on. His efforts to use the department to help him hold on to power after the 2020 election were one more instance of that long-running trend. 

And yet, for all the danger that Trump’s efforts to turn the Justice Department into his personal muscle posed to democracy, it’s proved strikingly difficult to communicate to Americans the crucial role of that independence as a check against authoritarianism. Now, the House select committee investigating Jan. 6 is taking a crack at the problem. Will it be any more successful?

During the committee’s fifth hearing, which focused on Trump’s efforts to enlist the Justice Department in his attempt to overturn the election, committee members took time to ask the witnesses—all former department officials—to explain how the department typically functions and how Trump upended that to his own advantage. As documented by the panel, Trump sought to pressure the Justice Department into investigating baseless allegations of voter fraud after the election. He pushed for the department to somehow file a lawsuit with the Supreme Court over those allegations—on what legal basis, it’s not clear; appoint a special counsel to investigate election fraud; and send a letter to the Georgia state legislature encouraging lawmakers to throw out the state’s electoral votes for Joe Biden and appoint pro-Trump electors instead. In a last-ditch effort, he considered appointing Jeffrey Clark, the lawyer behind the Georgia letter and the acting head of the department’s civil division, as attorney general—abandoning the plan only when the rest of the Justice Department’s leadership informed him that they would quit in protest if Clark were to take that role. 

Committee Chairman Rep. Bennie Thompson began the hearing by walking viewers through how to understand Trump’s predations, comparing them to local political institutions with which Americans might be more familiar than the august halls of the Justice Department:

Wherever you live in the United States, there’s probably a local government executive, a mayor, or a county commissioner. There’s also an official responsible for enforcing the laws, a district attorney, or local prosecutor. Imagine if your mayor lost a reelection bid, but instead of conceding the race, they picked up the phone, called the district attorney, and said I want you to say this election was stolen. I want you to tell the Board of Elections not to certify the results. That’s essentially what Donald Trump was trying to do with the election for president of the United States.

Later, Thompson’s colleague Rep. Adam Kinzinger explained the basic principles of Justice Department independence. “The president oversees the Department of Justice, yet the president's personal or partisan interests must not shape or dictate the department’s actions,” he explained. “The president cannot and must not use the department to serve his own personal interest, and he must not use its people to do his political bidding, especially when what he wants them to do is to subvert democracy.” He followed his remarks with a video montage of former attorneys general—both Democratic and Republican appointees—explaining that their oath of office committed them to serving the Constitution rather than the whims of a particular president. 

As the hearing went on, Kinzinger repeatedly gave the witnesses—former Acting Attorney General Jeffrey Rosen, Acting Deputy Attorney General Richard Donoghue, and Office of Legal Counsel head Steven Engel—the opportunity to walk viewers through the nuances of the department’s work and professional culture. To explain why the three men were so alarmed when they discovered that Clark had been meeting with the president behind their backs, Kinzinger asked Rosen and Engel to describe the Justice Department’s policies on the matter:

ADAM KINZINGER: Is there a policy that governs who — who can have contact directly with the White House?

JEFFREY A. ROSEN: Yes. So, across many administrations for — for a long period of time, there’s a policy that, particularly with regard to criminal investigations, restricts, at both the White House and in the Justice Department and those more sensitive issues, to the highest ranks. So, for criminal matters, the policy for a long time has been that only the attorney general and the deputy attorney general from the DOJ side can have conversations about criminal matters with the White House, or the attorney general and the deputy attorney general can authorize someone for a specific item with their permission.

But the idea is to make sure that the top rung of the Justice Department knows about it and is in the thing to control it and make sure only appropriate things are done.

ADAM KINZINGER: Mr. Engel, from your perspective, why is it important to have a — a policy like Mr. Rosen just discussed?

STEVEN ENGEL: Well, it’s critical that the Department of Justice conducts its criminal investigations free from either the reality or any appearance of political interference. And so, people can get in trouble if people at the White House are speaking with people at the department. And that’s why the purpose of these policies is to keep these communications as infrequent and at the highest levels as possible, just to make sure that people who are less careful about it, who don’t really understand these implications, such as Mr. Clark, don’t run afoul of the — of those contact policies.

It’s this context that allowed Kinzinger to communicate just how alarming it was for Clark to be headed to the White House on his own—and just how much Trump was interfering in the administration of justice for his own ends. “The Justice Department lawyers are not the president’s personal lawyers,” Kinzinger declared at the hearing’s end. “We count on them to be on the side of the law and to defend the best interest of the United States, not the best interest of any political campaign.”

Of course, the committee is not the first entity to attempt to explain the importance of Justice Department independence or how that independence was under attack during the Trump years. After Trump fired FBI Director James Comey in May 2017, Comey testified in a public hearing before the Senate Intelligence Committee about the president’s efforts to make Comey dependent on him and pressure the bureau into dropping its investigations into Russian election interference. That hearing featured some level of exploration of law enforcement independence: “I want the American people to know this truth,” Comey said. “The FBI is honest. The FBI is strong. And the FBI is and always will be independent.” At other points, senators gave the former director the opportunity to express why he found Trump’s demands for his “loyalty” to be so unusual and disturbing. Comey explained, “The statue of justice has a blindfolds on. You’re not supposed to peek out to see whether your patron was pleased with what you’re doing.”

As the Trump administration went on and the president’s efforts to undercut Justice Department independence mounted, the issue became a common subject for reports, white papers, and book chapters. In a less academic context, former officials took on the work of communicating that norm of law enforcement independence to the public in a number of ways—from podcasts to memoirs. Former U.S. Attorney for the Southern District of New York Preet Bharara—fired by Trump in March 2017 following his cool response to unusual personal outreach by the president—penned a book about his time in government entitled “Doing Justice” that sought to explain the inner workings of the justice system in an accessible way and thus “help people make sense of what has been happening in America.” Comey, too, produced an exploration of Justice Department norms and values in memoir form. He wrote,“for ordinary citizens, not legal experts or historians, because all of us must know the Justice Department.” 

Bharara’s and Comey’s books dwell on the importance of Justice Department independence—the same value that both men eventually lost their jobs over. This idea is central to the Justice Department’s self-conception. But for all its importance, it is surprisingly poorly understood by the public. To some extent, this was probably because in the pre-Trump, post-Watergate world, the centrality of law enforcement independence was sufficiently core to Justice Department culture that those within that culture thought it needed no explanation. Clearly, this was not the case. 

Yet even as current and former officials have put energy into communicating these norms more broadly, law enforcement independence remains a persistently difficult concept to explain to people not steeped in the traditions of the department and of government service. It proved tricky, too, to communicate just how dire the consequences might be if that independence were to be breached. After all those efforts to explain the idea, public alarm over Trump’s predations against the Justice Department remained persistently lower than the level of hair-on-fire panic within the department itself. I say this on the basis of years of struggling to express just how bad the situation was at the Justice Department to people outside Washington, D.C.—who, understandably, had concerns of their own to deal with and couldn’t spend all their time consuming the latest news coverage about the department.

Thompson’s comparison of the presidency to a mayor’s office suggests that law enforcement independence might be difficult to explain in part because Americans might not be familiar with the functioning of the executive branch. But the problem is also that the concept itself is complicated—perhaps surprisingly so.

It may have surprised many people, for example, to learn that it wouldn’t be illegal for the president to, say, order the Justice Department to investigate a political rival, or for a department official to meet with the president in the Oval Office without the knowledge of the attorney general. On the contrary, these aspects of Trump’s behavior fall comfortably under the rubric of presidential power under Article II of the Constitution. Rather, as Benjamin Wittes and Susan Hennessey write in “Unmaking the Presidency”:

[A] remarkably strong norm has developed—gradually and over a long period of time—in which presidents respect the prosecutorial autonomy of the Justice Department and the autonomy of its investigative units as well.

What’s more, the line between inappropriate presidential action and appropriate presidential direction of the department’s policy objectives is not always clear. And as Wittes pointed out during the 2016 presidential campaign, it’s exactly this ambiguity that would go on to make the Justice Department particularly vulnerable to Trump’s abuses.

Robert Jackson, then-attorney general and soon to become a Supreme Court justice, famously explained the ominous nature of prosecutorial authority in a 1940 speech, “Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” And under the direction of a president who has little respect for law enforcement independence, there is also the danger that the prosecutor will pick people who the president thinks the Justice Department should go after—and allow the president’s friends and allies to get away with wrongdoing. 

In some ways, the notion that there should be some constraint on the executive’s ability to direct the implementation of force traces back to the beginnings of liberal political theory. John Locke writes that government “ought to be exercised by established and promulgated laws, that both the people may know their duty, and be safe and secure within the limits of the law, and the rulers, too, kept within their due bounds.” The administration of justice is for the people, not the ruler. And the fair and reliable application of the law—“not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at Court, and the countryman at plow”—is central to what it means to live under a liberal democracy, rather than the rule of an authoritarian.

The Jan. 6 committee is now taking its own crack at explaining this knotty yet crucial subject to Americans. In part, this is necessary for the same reason that the committee needs to refresh the public’s memory of the insurrection itself—it’s been a while, and people need reminding. But the committee also seems to be putting in the effort to explain the issue in an accessible way, as with Thompson’s comparison of Trump’s actions to the demands of a corrupt mayor or local official. Only if people know the way things are supposed to work can they comprehend just how badly Trump sought to pervert that system in order to stay in power. 

Of course, figures like Comey and Bharara have done their best to explain law enforcement accessibly as well. But certain aspects of how the committee is going about its work may give it an edge in this respect. It’s taking care to make its hearings gripping viewing, using techniques from broadcast television. (Comey’s 2017 testimony, it’s worth noting, was a bona fide media event, drawing almost 20 million viewers—just a smidge less than the Jan. 6 committee’s first primetime hearing.) And it’s notable that the paeans to Justice Department independence in these hearings are coming not just from former officials—who might be expected to have loyalty to their old shop—but from members of Congress, an institution that has not always been on the best of terms with the department. Currently, the committee and the department are tangling over access to investigative material as both conduct parallel investigations. In that respect, the fact that elected representatives are themselves providing and situating these explanations may give them more weight.

The committee also has the advantage of its unique makeup. Thanks to an early refusal by House Minority Leader Kevin McCarthy to cooperate with Speaker of the House Nancy Pelosi to choose mutually acceptable GOP members for the panel, the committee’s seven Democrats and two anti-Trump Republicans have been able to coordinate their presentation of evidence to an unusual extent. Not only are the committee members telling the public a story, but they are doing so without regular interruptions from members in the minority seeking to disrupt the flow of the argument and confuse listeners. During the Comey hearing, for example, Democrats queued up opportunities for the former director to explain the principles of law enforcement independence only for Republicans to intermittently muddy the waters by suggesting that Trump’s solicitations were not so unusual or disturbing. And the tightly coordinated Jan. 6 committee also has the luxury of setting aside a full two hours just to focus on Justice Department independence, whereas Comey’s hearing of the same length featured different members of the Senate Intelligence Committee discussing the many different issues they felt were of concern.

Routinely, those warning about threats to Justice Department integrity during the Trump years were faced with variations on the same counterargument: How bad could it be, given that officials generally resisted the president’s demands? Among other things, it’s harder to convince people of the danger of a counterfactual. The Jan. 6 story does include example after example of Justice Department officials refusing to follow through on Trump’s inappropriate requests that they investigate voter fraud or otherwise upend the election—culminating in the dramatic scene where Rosen, Donoghue, and Engel promised the president they would resign if he were to appoint Clark as attorney general. 

But this time, unfortunately, the committee was able to provide a vivid demonstration to the public of what it looks like when the president is able to direct the use of force unconstrained by either law or norms, and wielded by people loyal to the president as an individual rather than the Constitution. That looks like unaccountable violence or the threat of violence operating outside the normative structure of liberal democracy. It looks, in fact, like Jan. 6. 

“We know these men before us did the right thing,” Kinzinger said at one point during the hearing, “but think about what happens if these Justice officials make a different decision.” He went on to draw a comparison between Justice Department leadership, who swore an oath to the Constitution, and the rioters on Jan. 6, whose chief moral commitment was to Trump himself—exactly what Trump had been looking for since he demanded fealty from Comey. “It wouldn’t take long to find people willing to pledge their loyalty to the man,” Kinzinger explained. “We know many of President Trump’s vocal supporters on January 6 also wanted the Justice Department to do whatever he asked as long as it meant he could stay in power.”

So far the Jan. 6 committee has mounted a compelling case for the importance of law enforcement independence—but whether that case will break through to the public is a different matter. A majority of Americans—including almost half of Republicans—say they’re following the committee’s work “very closely” or “somewhat closely,” and those watching “very closely” were likely to say they’d learned new information about the insurrection from the committee’s hearings. But docketing new facts about a horrific event—while important—is not the same as internalizing tricky normative points about the process of government. And, of course, many people aren’t paying attention at all.

The committee has pushed aggressively for the Justice Department to prosecute the former president for his role in the insurrection, pointing out specific statutes it believes he has violated and even changing some minds among legal commentators. However the department chooses to handle this looming question, its decision will invite a new round of public discussion around the thorny issue of law enforcement independence. If Attorney General Merrick Garland determines not to bring a prosecution against Trump, President Biden will no doubt face calls to push the Justice Department to act anyway. If Garland does move forward with charges, the case will balance on a knife’s edge as the department does its best to avoid the appearance of a political prosecution, while Trump and his allies do everything they can to tar it as such. At this point, public understanding—or lack thereof—of Justice Department independence will be central to the inevitable debate that follows.