On Tuesday night, The New York Times reported that Donald Trump had asked his aides to explore ordering the Justice Department to prosecute Hillary Clinton and James Comey. Though the wish ultimately went unfulfilled, the fact that it was made was widely condemned as an extreme abuse of power by legal experts and law-enforcement veterans.
For right-leaning allies of the president, however, the problem wasn’t that Trump contemplated prosecuting his former political opponent, it’s that he balked at following through on it.
“The advice that he shouldn’t order the Justice Department, assuming it was given, to get back to enforcing the law on Mrs. Clinton and James Comey, that’s political advice, not legal advice,” Tom Fitton, who heads the conservative watchdog group Judicial Watch, said. “Hillary Clinton benefited from a sham investigation into her email practices, and this Justice Department refuses to do anything about it. And the president would be derelict in his job to not ask why justice isn’t being served by this Justice Department… It’s reassuring that he is broaching the question.”
Fitton, whom Trump privately praises often and regularly quotes and promotes on Twitter, bemoaned that “we got the Justice Department harassing the president over a non-crime, while protecting Hillary Clinton,” echoing Trump’s spin and deeply flawed insistence that his former Democratic presidential rival is the real crook, and that he’s simply the victim of a “RIGGED WITCH HUNT!”
According to the Times, Trump had expressed his desire to prosecute Clinton and Comey to then-White House counsel Don McGahn earlier this year. McGahn laid out the reasons not to do so in a memo that underscored the political perils that would come with such a move. For many, the episode was yet another illustration of Trump’s authoritarian impulses pushing the boundaries of acceptable constitutional conduct. But as Trump’s attorney would tell it, the outcry is all over nothing.
“First of all, I can't find any support for [the Times scoop]. I've checked with everybody I could think of, and nobody seems to know anything about this,” Rudy Giuliani, the former New York mayor who is now a lead Trump lawyer for the Russia probe, claimed to The Daily Beast on Wednesday. “I haven’t talked to the president [about it] yet, but when I see him, I'll probably go over it with him.”
But if it did happen, Giuliani added, it was just Trump behaving as any new president would.
“If [Trump] brought it up with his counsel and asked for advice and then took that advice [to not order the DOJ to prosecute]… he follows that counsel's advice, that's the whole story. I wish all my clients followed my advice!” Giuliani said. “I think either it didn't happen, or if it did happen, it's exactly what we would expect of a new president: Ask advice, take it.”
The former New York City mayor also passed the buck a bit: “I know it didn't happen after I was there,” he said, adding that he officially joined the president’s legal team the next year.
The Trump White House, for its part, has remained rather quiet on the Times story. White House spokespeople didn’t respond to The Daily Beast’s request for comment. But throughout Trumpworld, the response was little more than shrugs. “The president asked questions. He is allowed to ask questions,” one senior administration official tersely assessed.
Within the halls of Trump’s own Justice Department and administration, the Times article further inflamed widespread fears regarding this president’s various flirtations with abusing his vast powers. In the DOJ, the news ratcheted up existing anxieties about the leadership of Matthew Whitaker, the acting attorney general who ascended to his role after Jeff Sessions was canned earlier this month.
Following the Times story, CNN reported on Tuesday that Trump had repeatedly asked Deputy Attorney General Rod Rosenstein and Whitaker, then Sessions' chief of staff, if the DOJ was “progressing” in probing Clinton. Whitaker, who is now overseeing Special Counsel Robert Mueller’s Russia investigation, used to be one of the harshest public critics of the Mueller probe.
“The Khashoggi episode reveals Trump as lacking any sort of moral compass,” said one DOJ trial attorney, referring to the murder of the Saudi dissident and the White House’s refusal to condemn Riyadh over it. “And because he can’t distinguish right from wrong, he can’t distinguish between, for example, the non-criminal conduct of [former FBI director] Comey that he loathes and the criminal conduct of Congressmen [Chris] Collins and [Duncan] Hunter, which he believes shouldn’t have been prosecuted.”
The trial attorney added, “it has fallen to McGahn, Sessions, and others to uphold the DOJ’s independence and fight off requests for wrongful prosecutions. Whitaker’s own track record of pushing a misguided prosecution in Iowa of an openly gay Democrat gives many of us concern as to whether he, like Trump, will view criminal prosecution as just another political tool, and, if so, how that will be resisted, too.”
Still, former DOJ officials said it was not completely abnormal that Trump might approach Whitaker to discuss investigations into Clinton and Comey.
“It’s not unprecedented that messages find their ways from political powers-that-be to the senior most political appointees at the department, whether it’s through the chief of staff… or whether it’s some other surrogate means that is less visible,” one former official in the department said. “It happens. It always happens with any highly politically sensitive investigation.”
As Sessions’s one-time right-hand man, Whitaker would have attended almost every meeting in the White House with the former attorney general, and some individually, the official said, giving the president plenty of opportunity to pose questions about Clinton and Comey.
Another trial attorney at DOJ said Trump spoke to Whitaker often about a variety of policy issues and that the two developed a close working relationship over the years. The Daily Beast previously reported that Whitaker’s cozy relationship with the president at times angered Sessions and instigated squabbles between the AG and his underling.
“The person who is supposed to be the point person when there is a political inquiry is the principal associate deputy attorney general,” the former DOJ official said. “That’s what the protocol says. But there’s no law that mandates that.”
And even if Trump had approached Whitaker about investigating Clinton and Comey, there’s no evidence the department acted on pressure from the president, the official said. “The question is what happened after the conversation,” he said. “If it didn’t make any difference and nothing came of it then [Whitaker] was acting as others have in the past.”
But to others, Whitaker’s newfound position of power poses to grave a risk that an emboldened Trump may once again try to weaponize the Department of Justice against his political adversaries.
“When you have an [acting attorney general] who is questionably qualified at the outset and who has actually been a political operative for part of his career, that is problematic at best. It takes away any legitimacy that role traditionally has,” said Bishop Garrison, interim executive director at the Truman National Security Project. “The system is already plagued with issues across the board, so to have us lose faith in the person that is supposed to lead it adds to the overall problems that already exist.”
For Garrison, Trump’s reported desire to unleash the DOJ on Comey and Clinton is the stuff of despotism, not democratic norms.
“Bottom line is that this is something that you see in a banana republic. We should never do anything of the sort [here],” he said. “Even though the attorney general is a political appointee, that person and the DOJ are first and foremost the country’s top law enforcement and should serve in the most non-partisan way as they can.”