On Tuesday, the New York Times ran a report citing information from anonymous officials that President Donald Trump told former White House Counsel Don McGahn he wanted to direct the Department of Justice to prosecute Hillary Clinton and James Comey. This tyrannical abuse of power—ordering your government to prosecute and ideally imprison your political enemies—would signal that our descent into dictatorship is complete. It is an eminently impeachable offense (Nixon’s similar albeit even milder requests were included in the articles of impeachment against him), and you’d think that in the interest of vigorously protecting the entire ideological premise of democracy, Trump would be immediately removed from office.
As of this writing, he is still President of the United States.
According to the NYT report, McGahn pushed back vigorously against the president, reminding him he can’t order the Justice Department to prosecute people because a) the Attorney General doesn’t represent his personal interests, and b) it’s an impeachable abuse of power. McGahn apparently gave the president a memo that outlined these points, though the Times was unable to obtain a copy of that memo. When reached for comment, McGahn’s own attorney cited McGahn’s non-existent attorney-client privilege with the president. (The White House counsel serves the people. The president is not in any sense a client. Same goes for his relationship to the Attorney General.)
McGahn apparently also wasn’t aware if Trump went to others with the order. To be clear about that: The White House counsel doesn’t trust the president won’t do everything he can to criminally abuse the office, and yet he served a man with those inclinations for another year and a half.
But what do we make of the news that Trump tried to strong-arm his Justice Department into prosecuting his political enemies? Well, to help understand the implications we first need to outline some connections to other stories.
First, there’s the fact so obvious it’s forgettable that Donald Trump has basically asked Attorney General Jeff Sessions to do these same things over Twitter, which are official Presidential statements. Here are a few: one and two and three and four and five and six and seven. In this light, it certainly seems the NYT report is old news.
But there is some new information here. Though Trump can argue his tweet orders to his AG weren’t exactly orders—he never gave the order in his tweets—but rather exasperation with what he perceives as an improperly imbalanced investigation (Trey Gowdy took this position with trademark integrity and aplomb), he can’t make that argument this time. Trump in fact exhibited his own consciousness of guilt with the choice to talk to McGahn in private.
Further, the allegations and possible memo comprise additional evidence for Special Counsel Robert Mueller, who is investigating Trump’s role in a broader conspiracy to obstruct justice. It’s almost certain, though, that Mueller had this evidence long before this report came out: McGahn submitted White House documents to Mueller long ago, and in addition to that sat with the Special Counsel for 30 hours of interviews.
To that end, note that in the articles of impeachment against Richard Nixon, Congress included similar abuse of power charges. Nixon went down for obstruction of justice.
We can draw another line from this story to the Mueller investigation. When Trump fired Comey, he, with the help of Stephen Miller and input from Jared Kushner and possibly Ivanka Trump, drafted a bloated and bitter jeremiad condemning Comey’s role in the Russia investigation. After deliberations with top aides, however, McGahn convinced Trump not to justify the sacking with the Russia investigation, but—with a galaxy-bending wrench of irony—to cite instead the way Comey mishandled the Clinton investigation in 2016. McGahn reportedly then marked up the initial letters on the desks of Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein, who wrote a letter slamming Comey for the Clinton investigation, citing among other things Comey’s unprecedented, unwarranted, and unilaterally-decided televised press conference where he recommended the DOJ should not prosecute Clinton.
Now, however, we know that around this same time,Trump himself was trying to prosecute Clinton. This contradicts his stated rationale for firing Comey.
Compounding this, on Nov. 7 Trump fired Attorney General Jeff Sessions—whom Trump had been furious with ever since Sessions recused himself from the Russia investigation—in order to take control of the Special Counsel investigation, which last year his newly and possibly unconstitutionally appointed AG Matt Whitaker publicly argued should be shuttered. Previously, Whitaker—who served as Sessions’ Chief of Staff—was known as Trump’s “eyes and ears” into the Mueller investigation, presumably meaning Whitaker passed to the White House whatever information he could glean in that capacity. In the role of Attorney General, however, Whitaker would have full view into the Special Counsel’s office.
Also note the timing: Trump had Mueller’s written questions for months and wouldn’t answer them; but then he fires Sessions, installs Whitaker, and one week later he submits his answers.
To fully tie this back to the McGahn story, we also know that Whitaker—who, again, is likely serving in an unconstitutional capacity—has publicly endorsed prosecuting Clinton. This means Trump wouldn’t even have to ask his new AG. Also unlike Trump’s foiled attempts in the spring of 2017, should Whitaker go ahead with a prosecution (or Potemkin investigation predestined for prosecution), Trump will have actually found a back door and succeeded.
This is a phenomenally offensive abuse of power, and given that Trump now has a sympathetic Attorney General, it’s an attack on not just our democracy, but the necessary principles and unwritten agreements that make democracy possible in the first place. In the United States, presidents do not prosecute their political enemies. If that happens, it’s the ballgame: Trump, through Whitaker, would feel empowered to go after others, such as Barack Obama, Eric Holder, and Susan Rice. From there the slope is a vertical sheet of ice.
Of course, at literally any other time in American history Trump would immediately be removed from office. Instead, the GOP has laid down the bet that Trump’s own incompetence combined with their last-line-of-defense “steady state” (in which McGahn and Sessions obviously played at least bit parts) will ensure he’s unable to act on his dictatorial bent. Their plan seems to have prevented the absolute worst so far, but since Trump has finally captured the Attorney General’s office, their grip, and possibly even their resolve, might break.