Normalizing impunity

President Trump has launched an all-out assault on judicial independence. In just the last few days, he has publicly attacked the prosecutors and judge in the case against his friend Roger Stone, tweeted his own control over the judicial system, and pardoned a few mostly white white collar criminals. Attorney General Barr has also reportedly intervened to end several investigations related to the President, including one focused on the President’s personal lawyer Rudy Giuliani.

Empathy is not the President’s strong point. He is not doing this because he thinks the people involved are innocent or even unjustly accused and convicted, though that is what he asserts. This is an attack on the justice system intended to normalize impunity, especially for the kinds of crimes his own coterie and he himself commit. Anyone who still thinks he won’t pardon Roger Stone and former National Security Adviser Michael Flynn is closing their eyes to the obvious: Trump is preparing the ground for those pardons and likely also one for himself, issued just before leaving office. He is also warning prosecutors that they should not bother with new cases against him or his friends.

His adversaries are another matter. Former Vice President Joe Biden is still in the crosshairs, despite his dramatic decline in the polls. Bernie Sanders is leading and will no doubt soon be the subject of Senate or Justice Department investigations, as will the fast rising former New York City Mayor Michael Bloomberg. Whoever rises to the top in the campaign for the Democratic nomination can expect the same treatment. Impunity for the President and his friends will be temporary if Trump loses in November.

Two thousand former Justice Department employees have signed on to a letter protesting what is going on and calling for the Attorney General’s resignation. There are rumors of rebellion among current employees in the Justice Department, and Federal judges are holding an emergency meeting to discuss the situation. But I doubt much will result. Trump is extremely sensitive to criticism, but his response to it is to attack his critics. Barr’s only achievement at the Justice Department is protecting the President, and his only complaint has been that the President’s tweets make that harder to do. Neither of these men can be expected to back down. Both will redouble their efforts.

There is not much that can be done about this. The pardon power is unlimited. The Justice Department’s supposed independence in criminal matters is more traditional than statutory. The courts are independent, but respect for their decisions and independence is not obligatory. A president can say pretty much what he wants about judges, prosecutors, indictees, and jury forepeople. Past presidents have generally avoided saying anything or getting themselves involved in individual cases. This one thinks he can get away with it.

The one avenue open to prosecutors that the president doesn’t control is the states. Their prosecutors and courts can pursue criminals without seeking or getting permission from the Federal government, except in cases where the Feds claim doing so could endanger their own investigations. That claim has been asserted in cases against some of Trump’s pals. I trust state prosecutors will not easily yield in the future, as it is clear enough that those assertions in this Administration are intended to protect criminality, not pursue it.

The world is watching this extraordinary attack on the rule of law. No American diplomat will be able to recite her talking points about corruption and abuse of power without a quiet giggle, and occasionally a big guffaw, from whoever she is trying to convince to pursue white collar criminals. The example America sets is vital to its diplomatic standing. President Trump’s normalization of impunity will be copied in many countries around the world. Putin, Duterte, Netanyahu, Orban and other would-be autocrats will be admiring the gall.