Trump and Republicans Have ‘Deep State’ Envy

Republicans don’t want to eliminate the “Deep State”—they want to be the Deep State.

That’s the thinking behind support for Donald Trump’s attacks on the Justice Department and the FBI.

Many Republicans—ranging from candidates like Florida Gov. Ron DeSantis, South Carolina Sen. Tim Scott, former UN Ambassador Nikki Haley, former Vice President Pence, and also the conservative-leaning think tank the Heritage Foundation—are all seeking to piggyback on Trump’s claims that he is a victim of a politically weaponized DOJ and FBI.

Backbench GOP candidate and entrepreneur Vivek Ramaswamy—who co-founded an investment firm devoted to opposing environmental and social governanance—deserves a special shoutout for being unabashedly all-in on Trump’s claim that Biden is directing the federal prosecution in order to get rid of Trump as a political rival.

Of course, what Trump and these Republicans really want is to control the DOJ and FBI themselves so that they can deploy law enforcement against their political enemies.

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We know that is their real goal because they propose making the DOJ and FBI less independent as a solution for what they claim is politically weaponized federal law enforcement—aimed at Republicans. Their illogic—not to mention hypocrisy—is perfectly illustrated by Gov. DeSantis’ argument that “Republican presidents have accepted the canard that the DOJ and the FBI are ‘independent.’ They are not independent agencies. They are part of the executive branch. They answer to the President of the United States.”

Accordingly, DeSantis promised to fire people at these agencies upon his becoming president.

Similarly, Republican National Committee Chair Ronna McDaniel seemed to talk out of both sides of her mouth when she claimed the indictment of Trump over mishandling of national defense information is a partisan prosecution—presumably directed by President Joe Biden—but also criticized Biden for not speaking out about the Trump charges in an effort to “unite the country.”

McDaniel doesn’t seem to understand that if she had her way, Biden would be more involved with the Trump indictment, not less involved. But she likely just means she would want a Republican president permitted to be directly involved in directing criminal prosecutions against political rivals. That is what she and DeSantis want: the power to do exactly what they falsely accuse Biden of doing.

But DeSantis, McDaniel, and the rest of the wannabe reformers of the DOJ/FBI seem ignorant of history and law.

First, the independence of the Justice Department varies widely depending on the administration, and second, the position of the FBI director is, by law, meant to be independent by the length of the position’s fixed 10-year term. But history suggests that efforts to insulate the DOJ and FBI from political interference often fail.

The Watergate scandal itself exemplifies both the DOJ’s lack of true independence—as well as its efforts to apply the law impartially—and the FBI’s susceptibility to direct partisan commands.

During the Watergate crisis, President Richard Nixon sought to fire Special Prosecutor Archibald Cox, who was investigating him. But when Nixon ordered his attorney general, Elliot Richardson, to fire the Watergate special prosecutor, Richardson refused and resigned. In what became known as the “Saturday Night Massacre” the next in line at the DOJ, Deputy Attorney General William D. Ruckelshaus, also resigned when Nixon asked him to be the special prosecutor.

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Upon the resignations of the attorney general and deputy attorney general, FBI agents sealed off their offices acting “at the request of the White House” and Solicitor General Robert Bork then faithfully carried out Nixon’s order to fire the special prosecutor.

The post-Watergate era DOJ does seek to insulate itself from political influence through guidelines like its “60-Day rule”—informal guidance that prohibits the department from taking investigative steps close to an election—arbitrarily set as within 60 days, that might influence the election. Senior DOJ leadership also encourages reliance upon the counsel of career prosecutors—versus political appointees.

In my own time as counsel to the attorney general, that meant relying upon the input of career prosecutors like the legendary David Margolis, who had served at the DOJ since the administration of President Lyndon Johnson. But even these practices hardly guarantee an independent Justice Department.

No better example of DOJ’s lack of independence exists than Trump’s own Attorney General Bill Barr—a shameless partisan who withheld the Mueller report so that he could first distort it favorably for Trump, tried to shut down a case against Trump’s national security adviser Michael Flynn after Flynn had already pled guilty, and overruled the sentencing recommendations made by career prosecutors in the Roger Stone case.

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As to the FBI, Republican accusations and promises to scratch it and rebuild it are long on wind and short on details. And these criticisms ignore the fact that the FBI director’s ten-year term is meant to insulate them from presidential interference of the kind Trump falsely claims Biden is wielding. Congress implemented the fixed term of a decade in the post-Watergate era as both a check on the power amassed by Edgar J. Hoover—the original FBI director—who stayed as director for nearly a half-century, as well a check upon the influence a corrupt president like Nixon might wield over the FBI, if allowed to install his own choice upon election.

But the independence of the FBI also carries with it the danger that FBI directors may wield unchecked authority, given that presidents and attorney generals alike may be reluctant to reign them in by firing them for fear of being accused of acting for political reasons. Even though the FBI is a division of the DOJ and the director answers to the attorney general, I saw in my time as counsel to the attorney general that the deference accorded to the FBI by DOJ leadership was much more akin to an equal than to a subordinate. Such deference is likely what allowed former FBI Director’s James Comey announcement about the investigation of Hillary Clinton only days before the 2016 election. (So much for DOJ’s “60-Day” rule.)

The dangers of the FBI’s independence also figure prominently in recent reporting revealing how the FBI resisted opening a probe on Trump’s Jan. 6 actions for more than a year, despite numerous prosecutors who wanted to commence investigations of Trump and close associates for their roles in the effort to overturn the 2020 election results. Reporting also showed FBI pushback against executing a search warrant on Trump’s Mar-a-Lago residence.

Coupled with Attorney General Merrick Garland’s concerns over avoiding any actions that might make the DOJ vulnerable to criticism for looking political, the FBI’s resistance caused a delay in commencing investigations of Trump that likely will make resolution of any criminal charges impossible before the next election cycle.

Trump and Republicans’ daily attacks on the DOJ make plain the failure and futility of Garland’s efforts to protect the department against criticisms of being partisan. Moreover, Garland seems painfully blind to the fact that being overly concerned about being criticized for being political is, in itself, a politicization of the DOJ.

So Trump and his Republican supporters may be right about the DOJ and FBI needing to be revamped, but not for the reasons they think.

We just might need an attorney general who isn’t afraid to be taunted by GOP insults, and an FBI that is less independent and less able to dictate the pace of criminal investigations and prosecutions.