After all, he’d only barely won the election, relying on a narrow margin in a handful of states for his electoral college victory. The idea that this thinly sliced victory might be attributed to Russian President Vladimir Putin instead of his own savvy and excellence was galling. So he immediately began lambasting the idea that Russia had done anything at all — and disparaging the intelligence community whose work on the interference had leaked into news reports.
The investigation into what Russia did — and into the extent to which Trump or his team may have aided that effort — consumed Trump. He referred to it as a “cloud” hanging over his presidency and fired the director of the FBI in hopes of terminating it. He was particularly outraged at the attorney general he’d appointed, Jeff Sessions, for recusing himself from decisions related to the probe. In keeping with his inability to differentiate between himself and his office, Trump expected his attorney general to defend him, not the presidency.
“Where’s my Roy Cohn?” he was quoted as asking, referring to the ferocious attorney for Wisconsin senator Joseph McCarthy during the Red Scare whom Trump had later befriended. Trump would at other times say he wanted an attorney general as loyal to him as Robert Kennedy was to his brother John or as Eric Holder was to Barack Obama.
That Holder analogy was telling because it derived from Trump’s greedy consumption of right-wing media before running for office. Obama was assumed to have been corrupt without any robust evidence, and therefore Holder was viewed as having been more loyal to Obama than the country by not investigating the president. (In 2018, Holder dismissed this idea by saying, “I had a president I did not have to protect.”)
The chess board was set. Trump was being unfairly targeted and his team at the Justice Department was unwilling to rise to his defense. Democrats, on the other hand, had no qualms about playing politics, letting their guys slide despite all of the heinous things that Fox News had said they’d done.
Then came Jan. 6, 2021. Trump’s efforts to retain power despite losing the 2020 election — aided by various external sycophants and at least one Justice Department official, Jeffrey Clark — culminated in the riot at the Capitol. After President Biden took office, a new wrinkle on the idea of a Justice Department politicized against Republicans emerged: Federal law enforcement was cracking down on rioters not because they rioted but because they were on the political right.
This idea gained steam over the next two years. It was useful for Trump, given that he was facing an expanding set of investigations into his post-election actions. The former president liked to suggest that he was just an innocent advocate for everyday Americans swept up in the toxic, political machinations of Justice Department goons — someone targeted not because he did things that seem pretty clearly to have violated the law but instead because the jackboots were so worried about his being reelected.
It depended to some extent on Republicans actually believing that they were under threat from federal law enforcement. People like Rep. Marjorie Taylor Greene (R-Ga.) suggested that the Jan. 6 arrestees were not generally violent criminals but people targeted for their beliefs.
Then there was the exhaustingly overblown announcement from the Justice Department that it would take threats against school officials seriously, an announcement that followed an increase in altercations at meetings focused heavily on covid-19 mandates and various right-wing culture-war nits. This announcement, focused on threatening actors, was portrayed falsely as the Justice Department targeting any parent on the political right — useful for Republicans and Trump because it made rank-and-file Republicans feel as though maybe law enforcement actually was about to break down their doors.
In August, the FBI searched Trump’s Mar-a-Lago home for files marked classified, a search that we now understand followed months of efforts to recover the documents and alleged efforts by Trump and his staff to ignore a grand jury subpoena. Trump eagerly applied the existing “they’re out to attack everyone on the right” framework, with success. It’s how he’s responded to the related indictment that was made public last week as well.
That indictment is useful to consider. It came not from the Justice Department, which had been probing the document retention issue, but from a special counsel appointed by Attorney General Merrick Garland. Garland appointed Jack Smith in November, days after Trump had announced his candidacy for the 2024 Republican nomination (about seven months earlier than he declared his candidacy in 2015).
“Based on recent developments, including the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well,” Garland said at the time, “I have concluded that it is in the public interest to appoint a special counsel.”
In other words, the intent was specifically to ensure that this probe, already obviously robust at the time, would be out of the hands of a Biden appointee and shunted to a process intended to remove any significant taint of politics. But, of course, Trump’s approach has always been to blur his actions by focusing on his enemies’ purported political motivations, so he and his allies have repeatedly claimed that Trump was indicted by “Biden.” This is not true.
After his arraignment this week, Trump went further, pledging to appoint a special counsel of his own to investigate Biden. In part, it’s meant to imply that he’s simply engaging in a tit-for-tat, that Biden did this to him so he’s going to do it back, as though this sort of thing just happens if a president wants it to. But it’s also very clearly the vision of the Justice Department that Trump wants to see, one that can be deployed against his opponents.
He tried, as president. As the 2020 election approached, he tried to pressure Attorney General William P. Barr to obtain indictments against Trump’s opponents. After the election, he repeatedly pressed the department to announce investigations centered on election fraud.
“Just say the election was corrupt and leave the rest to me and the [Republican] congressmen,” he reportedly said to a senior Justice official after the election. This was the Justice Department he wanted, one he could deploy as he saw fit, focused less on administering justice and more on leveraging its power for his own purposes.
The department’s Jeffrey Clark did his best to do Trump’s bidding. He proposed sending a letter to Georgia implying falsely that there was reason to suspect rampant fraud. Trump almost made him acting attorney general to put the plan into action. It was only the threat of mass resignations from the department that tabled the idea.
On Thursday, the New York Times identified Clark and another Trump administration veteran, Russell Vought, as being central figures in an effort to bring Trump’s vision of a fully subservient Justice Department to fruition.
“Conservatives are waking up to the fact that federal law enforcement is weaponized against them,” Vought told the paper in a statement, “and as a result are embracing paradigm-shifting policies to reverse that trend.”
See how that works? Conservatives believe the department is biased — thanks in no small part to Trump’s self-serving presentations of purported bias — so now the movement ought to simply make that the policy. The paradigm being shifted? That the department should be independent.
Clark wrote an essay last month titled, “The U.S. Justice Department is Not Independent.” It begins by quoting Federalist Paper Number 76.
“I proceed to lay it down as a rule,” it reads, “that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.”
This is a central theory, that the president should and does have the power to do what he wants with the department. That this power is deserved.
The irony is that the political right has spent the past few months presenting arguments about why this is a bad idea. We do not want presidents to be able to have their political opponents arrested — which, again, Biden did not do — because it risks polluting the electoral process. There are places where the legal system is deployed to consolidate political power, and we do want to avoid that becoming part of our system.
To that end, there are very fair arguments to be made about whether the indictment of Trump appropriately balanced the alleged criminality with his undeniable position as a political opponent of Biden’s. But Trump’s allies have eagerly ignored the former while exaggerating the latter, comparing the arrest not to indictments in other modern democracies but instead to the actions of “banana republics.”
What Trump advocates, though, is simply banana-republicanism. He wants to be president and to arrest his opponents, full stop. He has allies who would be comfortable with him having that power (though not Biden) who are building out a way in which it could happen. And he has a base of supporters who have been told for years that the system is out to get them and other people like them who are happy to see the whole thing torn out by the roots.
Trump is not a student of history or a proponent of the separation of powers. He has elevated doubt about federal law enforcement not because he adheres to the theories of Federalist Paper Number 76 but because he doesn’t want to go to jail. But he has a lot of people around him with their own priorities who are happy to help ensure that the fox is given authority over the henhouse.