“James Comey is a proven LEAKER & LIAR,” Trump tweeted on April 13. “Virtually everyone in Washington thought he should be fired for the terrible job he did-until he was, in fact, fired. He leaked CLASSIFIED information, for which he should be prosecuted. He lied to Congress under OATH. He is a weak and…untruthful slime ball who was, as time has proven, a terrible Director of the FBI. His handling of the Crooked Hillary Clinton case, and the events surrounding it, will go down as one of the worst ‘botch jobs’ of history. It was my great honor to fire James Comey!”
Trump had leveled so many similar accusations as president that the tweet quickly dissipated in the ether. Despite his accusing Comey of felonies for leaking classified information and lying to Congress, the media generally treated Trump tweets like empty threats, or entertainment, and the coverage of this particular tirade focused on the president’s calling Comey an “untruthful slime ball.” What was unknown at the time—what we all missed—was that Trump had broadcast publicly exactly how he had sought to use his power behind closed doors. Now, confronted with a new irritant from Comey, Trump realized he needed more than just tweets and arm-twisting. Goddamn it, Trump said to his aides, he was president of the United States. He needed to take the law into his own hands. He would prosecute them himself if he had to.
So, in the middle of April, Trump turned to one of the few people in the White House who, in spite of their differences, he believed could actually get something done: Don McGahn. In an Oval Office meeting, the president complained to McGahn about Sessions for his refusal to prosecute Clinton and Comey. Trump told McGahn that he wanted to order Sessions to prosecute them. If Sessions did not want to do it, Trump said he wanted to use his power as president to prosecute Clinton and Comey on his own. It was a startling disclosure for even Trump. Immediately, McGahn realized that the president’s determination to use the justice system to selectively direct prosecutions against his enemies was an enormous problem. Trump was already under investigation for obstructing justice for his firing of Comey. Now, his push for revenge, a blatant abuse of presidential power, could put Trump in the position of trying to prosecute a potential chief witness against him.
Trump’s request also showed McGahn that the president had little idea how prosecutions actually functioned, because the president had no power to order someone to be charged with a crime.
“First of all,” McGahn told the president, “you can’t prosecute anybody. Second of all, that’s the Department of Justice’s job, and if you do that, they’re all going to quit.”
Trump said he did not understand. He was the president and ran the executive branch. Why couldn’t he tell the Justice Department whom to prosecute?
At this point in the presidency, McGahn thought he knew how to tame Trump.
“How about I do this? I’m going to write you a memo explaining to you what the law is and how it works, and I’ll give that memo to you and you can decide what you want to do,” McGahn said.
McGahn knew what the memo would say: Trump had no power to prosecute anyone. That decision is made by apolitical Justice Department prosecutors who present evidence to grand juries, which are controlled by the judicial branch and indict individuals. The president could ask the attorney general to investigate someone. But the perception of that move—especially because it flouted the norms that had been established in the aftermath of Watergate to shield justice from politics—could further imperil Trump’s presidency.
The move to write the memo showed McGahn’s cunning ability to deal with Trump. If McGahn had simply told Trump he could not do as he wished, it could easily cause the president to lash out and make an irrational move, like firing him or Mueller. But by offering to write the memo, McGahn was both memorializing their exchange—a written record that showed he opposed this effort—and buying himself time for Trump to become distracted by something else. And McGahn knew that whatever the memo said, there was no chance Trump would sit down and read it. By that time, it was well known around the White House that Trump was not much of a reader, especially when it came to detailed and lengthy documents, like the memos. He preferred that their contents be summarized for him in a short conversation. The president had not read one book during his time in office.
McGahn briefly considered asking the Justice Department’s Office of Legal Counsel—the arm of the department that helps interpret laws—to provide advice on what the president could do. But it was such an elementary question and McGahn feared it could leak. Instead, he asked the lawyers who worked for him in the White House counsel’s office to write a memo laying out the problems with the president trying to prosecute his rivals.
The lawyers in McGahn’s office—conservatives who had been raised in the Federalist Society legal culture—had joined the administration to be on the front lines of the most serious legal clashes over executive branch power, such as how the president could use his authority to carry out his agenda on issues like trade and immigration. They believed in that work and had no interest or any expectation that in their jobs in the White House counsel’s office they would be pressed into service to answer a fairly basic, but politically toxic, question about how the president could and could not use his power. But at McGahn’s request, several attorneys in his office put their legal acumen to the extraordinary task of trying to protect the president from his most self-destructive impulses.
McGahn’s lawyers researched the question with the same vigor they put into more fulfilling policy briefs. From their offices in the Eisenhower Executive Office Building, they pored over Supreme Court decisions, the Constitution, presidential history, and law review writings from a range of lawyers and judges spanning the political spectrum. That work resulted in several drafts—addressed from the White House counsel to the president—that in the annals of the American presidency may well be without equal. The drafts totaled nearly ten thousand words and ran dozens of pages. They carried subject lines like “DIRECTING CRIMINAL ENFORCEMENT” and “Privileged, confidential and deliberative.”
The memos were written in a way that didn’t leave any doubt about how the White House lawyers felt about the question. Unlike many legal opinions on gray-area issues and other White House memos, McGahn did not offer any counterargument to his assessment that Trump could not initiate a prosecution against anyone, much less a figure whom he had run against for the presidency. The lawyers labored over the language, to ensure that no sentence could be taken out of context and construed as permission for such action. In dry but clear legal writing, the paragraphs build a powerful and comprehensive rebuke of the president’s desire to use his position atop the executive branch to carry out his vendettas. As a reading experience, one cannot escape noticing that the writers seemed to be acutely aware of the strangeness of this brief—to, essentially, teach an introduction-to-the-Constitution class to a president in training.
From the top, the briefs address the question that had increasingly showed up in Trump’s private conversations, tweets, and remarks to the media. “You’ve asked what steps you may lawfully take if you disagree with the Attorney General’s decision not to pursue criminal prosecution or not to conduct further criminal investigation,” McGahn said in the opening paragraph of one memo. The line seemed charitable to Trump, who had rarely asked his lawyers whether something he wanted to do was legal. In fact, he once asked McGahn why he had to follow international law; McGahn explained it was in the Constitution. It’s not as if Trump had gone to McGahn and specifically asked what was “legal”; he just wanted to know how he could throw Clinton and Comey in prison.
From there, McGahn made three overarching points: Don’t do it. If you do try this, you will likely get into huge trouble and could even be impeached. And, if you’re really upset about all of this, your only recourse is to fire the attorney general.
“There is a strong constitutional norm against political involvement in decisions about prosecution or c
riminal investigations,” McGahn told Trump.
The American people and Justice Department officials “share strong aversion to even the appearance that law enforcement decisions reflect political calculations rather than the sound exercise of legal judgement.”
“Particularly over the last several decades, consensus has emerged that a key component of ensuring fair criminal proceedings is avoiding even the appearance of political motivation for prosecution or criminal investigation,” McGahn wrote.
The memos educated Trump on the powers a president actually had under Article II of the Constitution. Despite being the head of the executive branch and the person who appoints the attorney general, he had no authority to actually prosecute someone himself. Only the attorney general had that power.
“You do not have authority however to initiate an investigation or prosecution yourself or circumvent the Attorney General by directing a different official to pursue a prosecution or investigation,” McGahn wrote.
To give the president proper context, McGahn detailed the evolution of American justice from the country’s founding, to show how politics had been slowly extracted from prosecutions over the 242 years of American history. Presidents Washington, Adams, and Jefferson, McGahn said, all instructed district attorneys on when to start and end prosecutions. The country had just been formed, and the federal government and its law enforcement powers were in their infancy. For our first presidents, leading a prosecution “was not something controversial” that they sought to keep from the public.
“Presidents were rather open about their direction, discussing their control in published speeches and proclamations,” McGahn wrote to Trump. Directing prosecutions became so openly accepted that the Senate once asked President Adams to have a district attorney prosecute a newspaper publisher for slandering the Senate. “President Adams complied, sending a letter to the district attorney for Pennsylvania instructing him to prosecute the man,” McGahn wrote. “Again, modern practice differs markedly.”
Skipping ahead 150 years in American legal history to the 1940s, McGahn demonstrated just how far the country had moved from its founding toward a clear separation between politics and the pursuit of justice. President Franklin D. Roosevelt’s attorney general, Robert H. Jackson, argued in 1940 directly against what Trump wanted to do eighty years later, the memo said.
“The most dangerous power of the prosecutor,” Jackson wrote, was that “he will pick people that he thinks he should get rather than pick cases that need to be prosecuted.”
But not until Watergate—and its shocking revelations of corruption and criminality that reached all the way to the Oval Office—did the public truly begin to pay close attention to the need for an independent Justice Department. McGahn used remarks made just three years after Nixon resigned by President Carter’s first attorney general, Griffin Bell, to show the scars the scandal had left.
“In our form of government there are things that are non-partisan and one is the law,” Bell said. “But the partisan activities of some attorneys general in this century combined with the unfortunate legacy of Watergate have given rise to an understandable public concern that some decisions at Justice may be the products of favor, or pressure, or politics.”
Bell added, “White House influences on the Justice Department, real and suspected, had contributed greatly to the public opinion.”
McGahn used other remarks by Bell to drive home the importance of a president keeping his distance from the Justice Department.
“The president’s best served when the attorney general and the lawyers who assist him are free to exercise their professional judgment,” Bell said. “Just as important, they must be perceived by the American people as being free to do so.”
Despite the post-Watergate reforms to police the relationship between the White House and the Justice Department, McGahn wrote, scandals have still arisen.
“These policies have not fully averted controversy,” according to McGahn.
McGahn laid out how in 2006 President George W. Bush had abruptly fired seven U.S. attorneys. Those dismissals gave rise to allegations that the prosecutors were dismissed for going after Bush’s allies and refusing to target his rivals. The consequences were painful.
“Following a 2-year investigation, the Department of Justice inspector general concluded that the removals were handled improperly and recommended that the attorney general appoint a special counsel to investigate whether political influence over the pending prosecutions motivated at least one of the removals, though a special counsel was never appointed,” according to McGahn. “Thus, not only is there a strong constitutional norm against political influence over law enforcement, but there is also specific tradition that this norm imposes strict limits on the appropriations on the White House involvement in individual criminal matters.”
McGahn even cited a 2001 Harvard Law Review article by Elena Kagan, one of the Supreme Court justices appointed by President Obama, to show, as she said, that “the crassest forms of politics (involving, at the extreme, personal favors and vendettas) pose the greatest danger of displacing professionalism and thereby undermining confidence in legal decisionmaking.”
The memos then cited a justice from the other end of the political spectrum. “Congress…can impeach the executive who willfully fails to enforce the laws…and the courts can dismiss malicious prosecutions,” Justice Antonin Scalia wrote in Morrison v. Olson.
But leaving aside the chance he may face political consequences, the memo was intended to explain to Trump that the norms against prosecutions were designed to protect individual citizens from being unreasonably targeted and that the president should not have a law enforcement role when it comes to individual citizens.
“The gulf between the overwhelming power of the federal government and the vulnerability of the individual citizen may be nowhere starker than in the criminal prosecution or an investigation,” McGahn said. “That is why, among other protections for the accused,” the Constitution demands that “no person should be deprived of life, liberty or property without due process of law.”
The president faced dire consequences if he even appeared to meddle in the Justice Department’s decisions about prosecutions, McGahn said.
“There are several political and pragmatic reasons why the president should exercise caution before deciding to get involved in any criminal matter,” McGahn warned.
The first obstacle Trump would likely face is Congress, which McGahn said stood best positioned to take on the president. Describing Congress as “perhaps the most likely and formidable foe in a potential conflict of presidential involvement in a specific criminal matter,” McGahn explained that it has “many tools if it perceives (even wrongly) that the president had crossed a line.”
Either the House or the Senate could conduct “intrusive and protracted oversight to investigate the motivations and details of the president’s involvement.” That oversight could come with restrictions on funding that could hurt the executive branch’s ability to “continue an investigation or prosecution.”
Of greatest significance, “Congress could seek to ‘impeach and remove’ the president if it concluded that he abused the power of intervening in a criminal matter,” McGahn wrote, using bold and italics to emphasize Congress’s powers.
The next obstacle Trump could face is the courts. McGahn acknowledged that the courts would likely not be as proactive as Congress at taking on the president, but the courts had several levers that judges could pull to thwart the president. If someone who had been targeted by the president was charged with a crime, a judge could dismiss the indictment, saying it was “selective or vindictive.” If the president played a direct role in someone’s prosecution, that individual could sue the federal government under the Federal Tort Claims Act for a “malicious prosecution” and claim the president’s “involvement improperly” influenced the c
ase.
The president could also face problems within his own administration. His own Justice Department officials—like Sessions—could refuse to carry out his orders. And, McGahn wrote, even if Trump were to fire the attorney general, law enforcement officials within the Justice Department would still retain the sole authority to prosecute individuals for federal crimes. McGahn suggested that the department’s remaining officials might want to disrupt any prosecutorial decisions that they saw as corrupt—causing further political issues and delaying the political prosecutions.
“Defiant executive officials could substantially disrupt any effort to direct a criminal proceeding and the process would further fan the flames of political opposition,” McGahn wrote.
Outside government, the American people could ultimately hold the president accountable were he to seek reelection. “The norm against political influence in law enforcement is enforceable by the American people at the ballot box,” McGahn wrote.
Trump could fire the attorney general, McGahn wrote, and seek to replace him with someone more willing to do his bidding. Such a dismissal may be the president’s only constitutional avenue to direct the Justice Department’s prosecutorial decisions. But, McGahn added, taking such a move could spawn new and perhaps greater problems for the president.
First, and most obviously, there would likely be significant political blowback to the dismissal, because it would appear as if the president were undermining the independence of the Justice Department that had been considered nearly absolute in the decades since Watergate.
The McGahn memos are also remarkable for the balance they strike between being respectful and restrained, peremptory and proscriptive. While McGahn cautioned Trump against executive actions that could hurt himself, it’s hard to ignore that by this point in his presidency Trump had already done much of what he was being warned against. McGahn knew that the president had asked Comey to end the Flynn investigation, he had fired Comey, he had called for the prosecution of Comey and Clinton, he had declared that he would not have made Sessions his attorney general if he knew he was going to recuse himself from any matters related to the Russia investigation, and he had tried to fire Mueller.
Donald Trump V. the United States : Inside the Struggle to Stop a President (9781984854674) Page 35
