Some former officials who served under the Ministry of Justice Donald Trump because he was afraid during his first term of office Supreme Court‘s recent immunity decision will make it easier for him to use the department against his enemies if he is re-elected president.
Other former officials downplayed or confirmed the decision.
Two former employees of the Department of Justice, who did not want to be named, said so the decision will embolden Trump. They said it would allow Trump to illegally pressure the Justice Department to pursue his own political interests — to prosecute an adversary or facilitate an ally — by saying he was performing his official duties as president.
“It gives him tacit approval to go ahead with it,” said the former official, who spoke on condition of anonymity, referring to the Supreme Court ruling. “It makes him do what he says: investigate people and send them to prison.”
Chief Justice John Roberts’ majority opinion held that Trump’s attempts to overturn the results of the 2020 election by prompting Justice Department officials to investigate baseless allegations of widespread voter fraud “completely immune” from the charge.
“The indictment’s allegations that the requested investigations were falsified or offered for an improper purpose do not deprive the president of the exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,” Roberts wrote. “Because the president cannot be prosecuted for conduct within his exclusive constitutional powers, Trump is completely immune from prosecution for alleged conduct related to his discussions with Justice Department officials.”
Jeffrey Clark, a low-level Justice Department official whom Trump is trying to nominate as acting attorney general on January 3, 2021, praised the decision. After more than half of the top Justice Department officials threatened to resign, Trump backed off from appointing Clarke, who supported his allegations of voter fraud and sent a letter to the Justice Department asking them not to certify the results of the election.
“He can work with the Justice Department to find out who is eligible to investigate,” Clarke said, referring to any president. interview for the podcast this week. “And he can judge whomever he sees fit to judge.”
A former Justice Department official who said the ruling was a “quiet endorsement” of Trump said it was also a road map for Trump on how to avoid prosecution. According to him, Trump has shown caution in his first term of office not to publicly ask someone to do something illegal. The official predicted that this will continue.
“Trump’s way of working is that he never publicly tells anyone to do anything,” the former official said. “He hints, pushes, incites. He never needs to direct these people to it. They went ahead and did it themselves.”
Another former Justice Department official expressed support for Justice Amy Coney Barrett’s dissent limiting the president’s immunity. The former official said the Roberts majority opinion was wrong when it said investigators could not use the president’s communications with the attorney general as evidence of a crime.
“If the president and his attorney general were drinking late at night in the basement and talking about how to break into the headquarters of the Democratic National Committee,” said a former Justice Department official, imagining a scenario with echoes of Watergate. Communications should not be prohibited as a matter of evidence in criminal prosecutions simply because there is communication between the president and his attorney general.”
Will Levy, who served as Justice Department chief of staff under Attorney General William Barr, disagreed and defended the decision. He said the majority opinion simply reiterated a long-standing constitutional principle that criminal investigations would be free from political interference.
“This is simply an expression of the president’s authority over the executive power, including the Ministry of Justice, according to the Constitution.” Levy told Bloomberg News. “The importance of ensuring the independence of a criminal investigation or prosecution from illegal political interference is a very important but different norm.”
Supporters and opponents of the decision agreed that Trump’s or any future president’s refusal to follow illegal or illegal orders would be career-defining for public servants.
A former senior official at the FBI, which handles federal criminal investigations and is part of the Justice Department, said agents would not follow illegal orders because agents do not have absolute immunity and could be prosecuted themselves.
“No one below the president has absolute immunity,” said a former senior FBI official. “So anyone who does that is putting themselves in legal jeopardy.”
The first former Justice Department official to publicly attack Trump for his stance said it was naive. He said the ruling would “embolden” Trump and continue to use public attacks, as he did in his first term, to discredit special counsel Robert Mueller’s investigation and slow down other investigations into his conduct.
“Trump’s use of tweets in which he openly attacks prosecutors and government officials, often naming them, directly interferes with the Justice Department. It scares the prosecutors with things that they normally cannot do… This is clearly a way to put pressure on the workers,” said the official, referring to his personal experience. “It’s hard for a career civil servant to be on the other end of that.”