President Donald Trump on Sunday launched his most direct attack on the Justice Departmentâ€™s independence since he fired FBI Director James Comey, taking to Twitter to â€śhereby demandâ€ť that it open a counter-investigation of the probe into Russian interference in the 2016 election.
Trumpâ€™s demand crossed every institutional norm that has long safeguarded the Justice Departmentâ€™s independence. The president was calling for an investigation into both political opponents from the former administration and career law enforcement agents, without evidence of wrongdoing, for the obvious purpose of undermining a criminal probe into his own conduct and that of his associates.
Trump was clearly testing the limits of the system that constrains presidential interference with the Justice Department. And the response so far - including Deputy Attorney General Rod Rosensteinâ€™s decision to refer the matter to the departmentâ€™s inspector general - shows that the system is failing.
There is no legitimate justification for asking the inspector general to investigate a hyped-up claim that the FBI inappropriately infiltrated the Trump campaign. Just as in February there was no legitimate justification for Attorney General Jeff Sessions, in response to claims by House Republicans, asking the inspector general to investigate alleged - and debunked - abuses by the department in securing a Foreign Intelligence Surveillance Act warrant against former Trump aide Carter Page.
But the presidentâ€™s direct involvement - and his transparent motives in using the demand to undermine the Mueller probe - makes the abuse here far more grave. It is one thing for an inspector general to review unsubstantiated allegations made by members of Congress. It is quite another for an inspector general to do so at the direction of a compromised president - whose demands carry the implicit threat of removal and who, in this case, is himself the subject of the underlying investigation.
Rosenstein is without a doubt in a tough spot, and the blame here does not rest with him. Republican members of Congress - at times in direct coordination with the president - have launched an unprecedented attack on Robert Mueller IIIâ€™s investigation, demanding that the special counsel turn over sensitive materials of a type that the Justice Department has never before released while an investigation was ongoing. At times, they seem to be more interested in the confrontation itself, possibly hoping that he will refuse some irrational demand, just so Trump has an excuse to fire him.
Rosenstein has tried to resist Congressâ€™s escalating demands but has often ended up caving under pressure. He turned over texts between two FBI employees, allowing them to be smeared by the president and the conservative media while the FBI investigation into their conduct was ongoing. (There still has been no finding of wrongdoing on their behalf and may never be, but the damage to their reputations is done.) He allowed Congress to view the FISA applications regarding Page, as well as a highly sensitive and classified document that launched the Russia investigation.
In surrendering this ground, Rosenstein seems to be giving the president and his defenders in Congress just enough accommodation - without fatally compromising the Justice Departmentâ€™s independence - to forestall either his own firing or Muellerâ€™s and to buy enough time for Mueller to complete his work.
But this is a dangerous game, and in the short term it may only embolden the president. Just think about it from Trumpâ€™s perspective: He crossed what has long been seen as a red line on Sunday, and not only did he not pay any consequence but also he got at least some of what he wanted. In referring his demand to the inspector general, Rosenstein gave credence both to the ideas that there was something nefarious in the Russia probeâ€™s launch and that it is acceptable for a president to demand a counter-probe into a Justice Department investigation.
I donâ€™t know whether Rosensteinâ€™s gamble will work. It may. But there is something to be said for the approach he laid out a few weeks ago, when he forcefully declared that â€śthe Justice Department is not going to be extortedâ€ť and promised that he would resist threats to him being made by unnamed people publicly and privately.
Standing up to Trump this weekend might have provoked the cataclysmic confrontation between the Justice Department and the president that has at times seemed inevitable since the Russia probe began. But the alternative is watching the slow erosion of the departmentâ€™s independence, as the presidentâ€™s attacks take hold.
Matthew Miller was director of the Justice Departmentâ€™s public affairs office from 2009 to 2011.