About the authors: Quinta Jurecic is a contributing writer at The Atlantic, a senior editor at Lawfare, and a fellow at the Brookings Institution. Benjamin Wittes is a contributing writer at The Atlantic, the editor in chief of Lawfare, and a senior fellow at the Brookings Institution.
So you want to corrupt the Justice Department.
It’s a worthy project for the power-hungry politician. These are polarized times. Left alone, the department could get weaponized against you, particularly if—and only you know whether this is true—there are skeletons in your closet. The department has a lot of people with guns and subpoena power, a lot of investigative muscle, and it can lock up your friends—and even you—if you’re not careful. Getting it under control is a really good thing, if you can swing it.
But it’s hard. A lot of the people who work there are unfortunately earnest. They believe in this whole rule-of-law thing; some of them even believe in equal justice under the law. They don’t think of themselves as merely serving the powerful. So if you want to protect yourself and your people from a complex investigation, you can’t just declare that you’re above the law and therefore the investigation needs to stop. That will just egg them on. You’ve got to proceed carefully. You’ve got to work the system. You’ve got to speak its language.
Fortunately for you, you have a perfect playbook for the project. Donald J. Trump wasn’t a successful president. He presided over a grossly botched response to a pandemic that left more than 130,000 Americans dead and the economy in tatters.
But Trump was the unrivaled master at institutional corruption. And, as long as politicians in power fear legal accountability, they will study his approach to bending the Justice Department to his will, looking to engage—as Clausewitz might put it—in lawyering by other means.
Here are the six steps in the Trump playbook:
First, you’ve got to get the right attorney general. Having one who is ideologically sympathetic to you isn’t good enough—after all, if you’ve made it this far, your main concern should be loyalty, not ideological consistency. Even having one who slavishly worships you isn’t good enough. Such a person, after all, might still recuse himself. He might not have a great deal of institutional sophistication about the department and how it works. He might not have the moxie to do the things that need to be done. He may leave things operationally in the hands of some deputy who actually cares about his reputation, if only a little, and who’s constantly looking over his shoulder worried about what the career folks think of him.
You need someone who does not need to be all things to all people—who will, like a honey badger, just not care if the legal community disapproves of him or if the press is appalled or if members of Congress call for his impeachment. You want someone who knows his way around the department, who knows what levers to pull, and who will be totally fearless about pulling them.
And this point is crucial: Your right-hand man (or woman) in this endeavor needs to be someone who is willing to reach down to the level of individual prosecutions to get his way. Because scuttling an investigation isn’t a high-level policy task. It requires getting dirty. If your guy is not willing to do that, he’s not serious.
If you’ve got this person in from the beginning, you’re golden. There won’t be an investigation to start with—because you’ll have squashed it. This is the ideal outcome.
The hard part arises if you screw up initially, starting with someone who’s not up to the task, and your fixer doesn’t come in until the major investigation is well under way, maybe even done.
This brings us to step two: once the investigation concludes, make sure your attorney general snips off any remaining loose threads. You don’t want to leave hanging the possibility that your friends—or you yourself—could face criminal charges when you eventually leave power. So encourage your attorney general to make a public statement that the existing evidence does not establish that any further crimes—such as, say, obstruction of justice—took place. This isn’t an absolute shield against future prosecution, because the Justice Department can theoretically reopen matters that have been closed. But here’s where a really sly operator can turn the Justice Department’s traditions against it. There’s a pretty strong norm against doing this without new evidence, which means that it will be significantly more controversial for some future administration to pursue charges against you with this record on the table. And if a future administration decides to go for it anyway, you’ll be able to point to that contrary record in complaining that you’re facing politically motivated harassment.
Third, you’ll want to begin a Justice Department investigation into the investigation that caused you such trouble, in order to cast doubt on the integrity of the negative findings against you and your friends. Leave this up to your loyal attorney general, rather than directing it yourself—you want it to have a sheen of seriousness and legitimacy. Accordingly, you’ll want to make sure that the prosecutor in charge has credibility to burn and isn’t obviously a partisan hack.
When it comes to the results of the meta-investigation, don’t worry about consistency. Having a compelling alternative story about what happened is less important than being able to make some vague noises about unspecified wrongdoing by the people who looked into you. The latter is far more versatile—if nobody quite knows what your argument is, you can deploy it against any possible counterargument.
Yelling a lot will help.
And don’t worry about wrapping things up quickly. The longer your investigation of the investigators goes on, the more shadowy and ominous it will seem. After all, if your prosecutor’s probe has been going on for a long time, he must be digging his teeth into something really bad. If you are in the middle of a campaign for reelection, your attorney general might consider dropping increasingly dire hints about what the prosecutor has found, just to spice things up. And don’t be shy about duplicative investigations either. When one is done, start another. Keep a constant low buzz going about about the conspiratorial nature of the original investigation.
The hard part is going to be the cases that have already generated indictments. These are going to be messy. In these cases, after all, the Justice Department has already put on the record its claim that defendants have committed crimes. It may have even proved that in court, or the defendants may have admitted it. And nothing is worse than convictions or guilty pleas to validate the premises you are trying to cast into doubt with your meta-investigations.
Handling them is always going to be a case-by-case dance, but the Trump playbook offers a few key steps. One is—and this is step four—that you use your meta-investigation to discredit all of the convictions. Even if the evidence behind them is overpowering and clear, if you can get people to believe that the investigation itself was corrupt, it follows that there is something deficient about its results.
You want to attack all of the pending cases—at whatever stage they happen to be. If someone is awaiting sentencing, you come in and argue for a lighter sentence. Your attorney general may have to reach down to the line level and overrule the career folks to do it, but that’s okay. Do it anyway. If you’ve conditioned the battlefield by discrediting the investigators over a long period of time, this will actually seem like justice to a lot of people. Even if one of those career prosecutors testifies before Congress about the corrupt interference in the case, the clamor will pass.
Fifth, if you get involved before sentencing, your attorney general can simply dismiss the case. This will take a great many people by surprise, and it will offend many of them. But that’s only a problem if you and your honey-badger attorney general care. This is admittedly an aggressive step, and if you’re going to take it, some preparatory work is probably in order. It’s a good idea to have a U.S. attorney review the case specifically and recommend its dismissal. And you have to be prepared for defections by career officials. But ultimately, dismissal is an arrow in your quiver, and it’s one the courts will likely insist is yours alone to shoot
Finally, there’s a sixth tool for when everything else fails—for the case in which the evidence proves guilt beyond a reasonable doubt, the jury has ruled, and the judge has passed sentence. It’s a tool, in other words, for when things are out of the Justice Department’s hands. You still have the power of clemency.
Sometimes, if you really want something done, you just have to do it yourself.