There’s No Good Way to Protect the Presidency Anymore

The Department of Justice is banking on a future full of upstanding presidents who are committed to rule of law. But we may not be so lucky.

An illustration of the seal of the President of the United States covered by a broken shield
The Atlantic

About the author: Quinta Jurecic is a contributing writer at The Atlantic, a senior editor at Lawfare, and a fellow at the Brookings Institution.

When President Joe Biden announced in the weeks before his inauguration that he was committed to reestablishing an independent Justice Department, he didn’t say that it was going to be easy. During the first few months of Attorney General Merrick Garland’s tenure, the department has sparked ire among its critics on the left—and prompted annoyed statements from the White House—by taking a series of positions that seem, to some, uncomfortably close to the aggressive approaches staked out by the Trump administration. It has fought not to release a document that might cast light on Attorney General Bill Barr’s effort to spin the findings of the Mueller report in then-President Donald Trump’s favor. It’s successfully asked a court to dismiss lawsuits against both Trump and Barr over the tear-gassing of protesters in Lafayette Square. It’s kept up its defense of Trump in a defamation lawsuit filed by a woman who accused him of raping her.

In each of these cases, the Justice Department presents itself as protecting the power of the presidency as an institution, whatever the politics of the person who happens to be sitting in the Oval Office. The department doesn’t want to release the memo to Barr concerning the Mueller report, because doing so would risk pruning back the executive’s ability to prevent other internal documents from being released in the future. Likewise, it’s protecting Trump from lawsuits over Lafayette Square and defamation because any precedent set against the former president could open up other presidents to lawsuits going forward. These are familiar positions for the department to take, and they sometimes create uncomfortable situations when an administration winds up in the position of defending its predecessor.

But the especially sharp contrast between the Biden administration and its particular predecessor makes for a more uncomfortable situation than most. During his time in office, Donald Trump repurposed the presidency in the service of malice and personal gain. After Trump, is it possible—or desirable—for the law to maintain a clean distinction between the office of the presidency and the person who holds it? The answer depends, in part, on whether Trump is best understood as a onetime aberration in an ongoing lineage of decent presidents, or as a man whose presidency opened the door to future leaders with no commitment to rule of law or interest in the institutions that uphold it.

Of all the legal filings for which the Justice Department has recently caught flak, its brief in the E. Jean Carroll case has attracted the most outrage. In 2019, Carroll, a longtime writer and advice columnist, accused Trump of raping her in a department-store dressing room in the 1990s. Trump denied the allegation. “She’s not my type,” the president told reporters, and he repeatedly called her a liar; Carroll sued for defamation. The Justice Department raised plenty of eyebrows when, under Barr, it first stepped in to defend Trump in court. Given Biden and Garland’s rhetoric of reform, onlookers might have expected the department to drop the case under the new administration. But while the tone of the government’s arguments might have changed under Garland, their substance hasn’t. In its recent filing, the department explained—somewhat apologetically—that though Trump’s dismissal of Carroll as a liar was “crude and disrespectful,” “distasteful,” and “without question unnecessary and inappropriate,” this boorishness is unrelated to the strength of the legal argument that Trump should be shielded from suit over his comments. The case, the department wrote, raises “questions that implicate the institutional interests of the federal government.”

Once the news of the department’s filing broke, the White House tartly announced that it “was not consulted by DOJ on the decision to file this brief or its contents.” In doing so, it emphasized the same distinction that Biden had promised on the campaign trail to uphold and that Trump so often obviated—that the Justice Department, though part of the executive branch that the president controls, should nonetheless be separate and independent from the president’s individual desires. Biden might not like that, but, in a way, his not liking it proves the point. The department is not personally beholden to him.

Independent federal-law enforcement is founded on this divide, which Trump never really bothered to understand, between the individual president and the machinery of the presidency as an institution. The same divide appears in the Justice Department’s brief in the Carroll case: The people in power come and go, but the institution perseveres. As Daphna Renan, a professor at Harvard Law School, writes, this conceptual split between the person and the office is refracted throughout American understandings of presidential power. Riffing on the historian Ernst Kantorowicz’s famous description of “the king’s two bodies” in medieval politics, Renan terms this split “the president’s two bodies.” (I once argued, not entirely facetiously, that Trump’s use of his personal Twitter account, @realDonaldTrump, and the official @POTUS account reflected that same divide.)

Transitions between presidential administrations tend to put the Justice Department in the awkward position of navigating the different commitments of the two bodies. In Power Wars, a history of President Barack Obama’s approach to national-security law and policy, the New York Times reporter Charlie Savage describes the brand-new White House’s frustration with the Justice Department’s decision to continue a Bush-era legal argument against disclosure of information that could reveal state secrets. Obama, who had previously criticized the Bush administration’s lack of transparency, was irate when he discovered, from a story in the Times, that the department was sticking with its old approach.

But the decisions that the Justice Department is making today are particularly difficult because of the nature of Trump’s presidency. He was a leader who used the department as “his own law firm”—as Biden himself argued during a presidential debate, criticizing the DOJ’s intervention to defend Trump from Carroll’s lawsuit. Over and over again, Trump tried to erase the distinction between man and office by turning the machinery of government to his personal benefit. He bullied the Ukrainian president for political advantage and did his best to use his power as president to overturn the results of the 2020 election. Yet those same actions also underscored just how far Trump was from the constitutional expectation of what a president should be. He was incapable of fulfilling his sworn oath to “take care that the laws be faithfully executed” and to “preserve, protect and defend the Constitution”—and the House of Representatives identified this violation in both sets of impeachment articles against him, not so much blaming him for a broken promise as correctly identifying that he had never understood or intended to deliver on that oath in the first place.

The result is a somewhat absurd disjuncture between what the Justice Department now presents itself as defending on the page and the conduct that led to the department’s putting those words on the page in the first place. Saying that the government has an “institutional interest” in shielding a sitting president from defamation lawsuits may not be wrong. The problem is that Trump’s underlying actions—dismissing a credible rape allegation on the grounds that the accuser is “not [his] type”—are so egregious and so particular to Trump that to describe the resulting litigation as a matter of bland, formalistic institutional interests is itself insulting. Trump’s efforts to subsume the institution of the presidency into himself and to make everything about himself endangered the Justice Department’s independence, and now the department—in an effort to protect the institution of the presidency—is shielding some of that behavior from accountability.

Throughout Trump’s presidency, courts struggled with the question of whether and how Trump’s abhorrent personal behavior should inform judges’ handling of cases involving his administration. This quandary eventually reached the Supreme Court in the form of Hawaii v. Trump, the travel-ban case. The majority, led by Chief Justice John Roberts, took the view that the president’s repeated promises to prevent Muslims from entering the United States did not tar the entry ban for citizens of several majority-Muslim countries, ostensibly as a matter of national security, as unconstitutional. Dissenting, Justice Sonia Sotomayor argued that the policy had been “contaminated” by Trump’s stated desire to discriminate.

In continuing to defend Trump from Carroll’s suit, the Justice Department is doing its best to wall off the institutional presidency, even retroactively, from what it portrays as Trump’s purely personal failings. If courts distrust an individual president, and incorporate that distrust into their rulings, the effect is a judiciary less inclined to give the executive branch the benefit of the doubt and more inclined to roll back otherwise acceptable uses of presidential authority. From the Justice Department’s point of view, this is a problem. But can those failings really be walled off?

One way to understand a president who so thoroughly did not measure up to his oath is to argue that Trump’s term in office was a blip, a mistake that won’t be repeated and that shouldn’t affect the traditional posture of the courts toward the executive branch. This seems to be the Justice Department’s current approach: Work to ensure that the Trump presidency will have as little impact as possible on the role of the president in American law, and, not coincidentally, preserve the power of the presidency by doing so.

Critics of executive power might hope that the Trump administration’s bad faith could sour courts across the board on aggressive assertions of executive authority. Perhaps it’s harder for a new administration to say, “Trust us” and be believed when trust has so recently and flagrantly been betrayed.

Alternatively, courts could consider whether they have confidence in the good faith of a particular president at issue, and use that to help determine how much credit the institution of the presidency deserves in any given instance. To some extent, this is already in practice: A selection of judges across the country, including Justice Sotomayor, have adopted this approach, though some make this more explicit than others. So far the model, still in its infancy, is more of a mood than a systematic legal principle, but it has shown merit in its willingness to recognize the obvious facts of Trump’s mendacity and bad faith. In staking out a position that insists on a split between president and presidency, the Justice Department is looking, in part, to prevent this model from catching on.

It’s easy to see the department’s approach as cynical, a defense of presidential power above all. Viewed differently, though, it’s almost optimistic. On his first day at the Justice Department, Garland promised to “show the American people by word and deed that the Department of Justice pursues equal justice and adheres to the rule of law”—a quiet rebuke of the previous administration. Sticking to the government’s usual approach of maintaining legal positions across administrations, as the department would, following a less aberrant presidency, is one way of adhering to the rule of law. But the willingness to defend Trump also speaks to a perhaps unwarranted confidence that the 45th president will remain an aberration—and that a future Justice Department will not find itself in court defending the same abuses.