The Justice Department and the Challenge of Public Confidence

“Where Tyranny Begins” is David Rohde’s account of seven tumultuous years at the Department of Justice and the FBI following the election of President Trump in 2016. His focus is on the norms that have long governed those institutions and on the enormous pressures that Trump’s unprecedented conduct has placed on those norms and on the attorneys and agents working on the most sensitive cases. Rohde is a Pulitzer Prize-winning investigative journalist, and while his book doesn’t purport to provide any dramatic revelations about the events it describes, it offers a high-level chronicle of some of the important Justice Department controversies spanning the past two presidential administrations, based both on public records and on the author’s interviews with some of the participants. It provides an engaging and often perceptive examination of the extraordinary challenges the department has faced in the Trump era. Readers will come away with a better understanding of those challenges, even though the book fails to provide any new and persuasive thinking about whether or how the Justice Department’s long-standing norms should be changed as a result of them.

While many of the separate stories Rohde recounts are likely familiar to Lawfare readers, the cumulative depressing effect of reading episode after episode in which Trump sought to politicize and personalize the work of law enforcement exceeds the sum of its individual parts. To name several leading examples: Early in his first term, Trump unsuccessfully pressed Attorney General Jeff Sessions to “un-recuse” from the FBI’s investigation into Russian attempts to influence the 2016 election so that Sessions could kill that investigation; Trump also fired James Comey as FBI director in an effort to accomplish the same end. While running for reelection in 2020, he pushed for prosecutions of rioters in Portland to project an image of strength, and for treason investigations of former President Obama and his electoral opponent, Joe Biden. After losing that election, he demanded that the Justice Department investigate the wackiest possible theories of election fraud to bolster his claim that the election was stolen. And there were many other such efforts, including some that did not make it into Rohde’s book, either because they fell outside the book’s focus as they did not require Trump to seek any participation by the department (like those involving the dangling and granting of pardons) or simply because there’s a limit on how much can be recounted in a few hundred pages.

Rohde periodically provides reminders of just how much of a change the public and political reaction to Trump’s misconduct represents from the responses to Watergate. The facts developed by the Senate Watergate Committee were widely accepted by the public, and Richard Nixon’s decision to resign was strongly influenced by the urgings of Senate and House leaders from his own Republican Party. A criminal indictment of an elected official used to be an inevitable career killer. Even early on in Trump’s presidency, there were some glimmerings that leaders in his party might be open to condemning his misconduct, with some Republican senators welcoming Robert Mueller’s appointment as special counsel, and Lindsey Graham even introducing a bill to protect Mueller from being fired. But quite quickly and with growing fervor over time, the level of support for Trump from his party and movement became nearly absolute even while his transgressions against law and norms grew bolder and more blatant.

Rohde characterizes his book as part investigation and part “psychological study.” He is interested in how Trump successfully discredited, divided, and intimidated Justice Department and FBI officials. One significant contributor, as he sees it, was their own naivete: Trump was often able to outmaneuver them in part because they were slow to recognize the danger Trump posed and his capacity for fomenting suspicion and even hatred of their institutions. But Rohde’s principal thrust is to raise deeper questions about the principles that have traditionally defined professionalism at the Justice Department. He harbors substantial doubt that the department’s customary norms of behavior are up to the task of responding effectively to a disrupter like Trump. And he therefore implies that Attorney General Merrick Garland, whose approach has been to reinforce those norms, is fighting a losing battle rooted in outdated values.

Rohde believes this especially to be the case with respect to the battle for public opinion. The Justice Department carefully avoids commenting on pending investigations and prosecutions in all but the most limited and factual way. It generally does so even when a target or defendant makes incendiary accusations against it, choosing to let its public filings and presentation of evidence in court speak for the integrity of its conduct. This may work against it in some respects, particularly in a news environment dominated by cable networks and social media. Rohde notes how much more compelling the Jan. 6 committee’s televised hearings, including its carefully constructed video presentations, were in explaining the attack on the Capitol than anything the tight-lipped Justice Department was saying at the time. He observes that Mueller, when testifying before Congress about his investigation, was “meticulously fair to Trump” and followed “the department’s rules against revealing negative information about an individual who has not been charged with a crime.” Rohde contends that the Mueller hearing showed “how the norms of the 1970s were no match for the online smears, partisan cable TV coverage, and hyper-partisanship of the Trump era.” And when Special Counsel Jack Smith later announced his first set of charges against Trump in a somber three-minute public statement, he “was far less telegenic and entertaining than the former President he had just indicted.”

There’s no doubt that an unwillingness to fight a public relations war will put you at a disadvantage in a public relations war. But the Justice Department’s norm against making detailed public comments regarding pending matters exists because it properly prioritizes higher values of fairness and due process. Those values would be undermined in important respects if the department, with its presumed access to broad and confidential law enforcement investigative information, started publicly criticizing individuals outside of the highly regulated process of presenting evidence in court. 

Rohde implies that if Mueller had made a more aggressive presentation at his hearing, or handled the writing and release of his report differently, he could have moved public opinion about Trump in some material way. It’s far from clear that this is the case. There has been no shortage of voices in the public square criticizing Trump based on the results of the Mueller investigation and the other matters covered in Rohde’s book. Those voices have convinced some people, while leaving unmoved most of Trump’s party and seemingly all of his core supporters. One of the key lessons of the past several years is that there are significant segments of the public that simply will not find revelations and commentary about Trump’s misconduct especially credible or persuasive. A few more voices coming from inside the Justice Department were unlikely to have made a difference. And what of the costs? Should the department tell Congress and the public that someone has committed a crime when it will not or cannot charge him?

None of this is to say that there might not be more the Justice Department could do in the area of public communication while staying within its accepted constraints. Rohde notes, for example, that when the attorney general appointed Jack Smith, he and other department officials could have made a broader effort to explain to the country the history of, and reasons for, special counsels. This would have fit comfortably within a practice followed successfully by Edward Levi, the revered attorney general who used speeches and writings extensively in the aftermath of Watergate as tools to educate the public about the proper role of law enforcement.

In addition, after the Mar-a-Lago search, Rohde observes, the Justice Department initially responded to Trump’s denunciations of this “raid” by largely staying silent about its rationale but was then able, consistent with its norms, to make that rationale public once Trump filed a motion in court that opened the door for a public filing in response. Rohde praises the department’s decision to include in those court papers a photograph of classified documents spread on the floor of Trump’s office—a vivid illustration of Trump’s recklessness that was not strictly necessary for judicial purposes but that usefully made the stakes more visible to a broader audience. “Where Tyranny Begins” is frustratingly unclear, however, on whether and to what extent Rohde believes the department should be directly departing from its norms in this area, rather than merely making these kinds of modestly different choices while it continues to adhere to the norms.

The book’s most interesting feature is its exploration of how concerns about reactions outside the Justice Department can distort deliberations inside it. We expect the department to make its law enforcement decisions courageously and on the merits, without regard to whether those decisions will be popular. At the same time, public confidence is essential to the department’s work, which critically depends on maintaining the trust of witnesses, informants, jurors, judges, and law enforcement partners at every level of government. Those two propositions can reinforce one another when, for example, the department makes a professionally based decision to bring a prosecution and then earns public confidence by fairly presenting convincing evidence of its case in court. But they can also come into tension, particularly when the department faces inflammatory accusations of politicization and misconduct that, even when inaccurate and unfair, resonate with a significant portion of the public.

“Where Tyranny Begins” provides descriptions of several events in which that tension surfaced. The most detailed is an excellent fly-on-the-wall account of the intense debate among career prosecutors and FBI agents over whether to seek a search warrant for the classified materials at Mar-a-Lago. It should have been an easy call. There had been months of negotiations with Trump, who asserted that he had returned all government documents. But there was powerful evidence—including surveillance videos showing the surreptitious moving of boxes—indicating that Trump was deceiving them and that classified materials remained at his resort, where they could be exploited by foreign governments. If the facts had been the same but had instead involved a former mid-level analyst at the National Security Agency, there would have been no serious debate over whether to seek a warrant.

Some of the senior FBI participants nonetheless opposed taking that step in this instance. After years of seeing the bureau pilloried over investigations of Trump and his associates, they were wary of subjecting their institution to additional attacks and of stoking further public mistrust unless and until all other options had been exhausted. Their concerns were personal too because they had seen colleagues who had been publicly associated with Trump investigations—people who in earlier times would have been unknown outside the government—subjected to career-ending assaults in widely read presidential tweets and denunciations by Republican members of Congress, with even the safety of their families sometimes put at risk. Indeed, Rohde reports that, once the decision to seek the search warrant was made, the FBI agents entering Mar-a-Lago “nervously joked that they would all be fired if no classified documents were found.” Bearing out some of those concerns about attacks by Trump supporters, in the wake of the search, an armed man wearing body armor was killed attempting to enter the FBI’s Cincinnati field office in protest, and breaches of three other field offices were attempted. 

These dynamics can erode trust not only outside an institution but also within it. Rohde found from his interviews that some of the FBI officials participating in these deliberations suspected some of the prosecutors of harboring political bias against Trump, or of being driven by ambition to seek a career-defining case. Some of the prosecutors, in turn, felt the FBI leaders had become too personally fearful of the potential consequences to themselves to support appropriate investigative tactics. “Where Tyranny Begins” illuminates how the sharp political divisions in our society can warp relationships and decision-making inside some of the government’s most important and powerful agencies.

The problem is compounded by how difficult it often is for the public, and even sophisticated outside observers, to know what’s actually going on inside these buildings and why. The reality is often different than perceived, particularly given that we may each view the incomplete set of facts that becomes public through a lens clouded by our own preconceptions. The corrosive dispute over the Justice Department’s sentencing recommendation in the criminal case against Roger Stone—and Rohde’s own take on that dispute—provides a stark example. 

On the surface, the story has all the elements of a classic Washington narrative of career civil servants being overruled by political appointees for partisan reasons. Stone, a notorious political operative and friend of President Trump, is convicted for lying to congressional investigators about his communications with the Trump campaign. The prosecution team in the U.S. Attorney’s Office for the District of Columbia files with the court a memorandum on Feb. 10, 2020, recommending a stiff sentence of 7-9 years’ incarceration. A few hours later—shortly after midnight on Feb. 11—President Trump tweets that the recommendation is “Disgraceful!” and a “miscarriage of justice!” that “cannot [be] allow[ed].” An extraordinary second memorandum, superseding the first, is then filed shortly before the close of business on Feb. 11 under the direction of Attorney General William Barr, now advising the court of the department’s new position that a 7-9 year sentence “could be considered excessive and unwarranted under the circumstances” and that a “far less” severe sentence would be reasonable. All four members of the prosecution team resign from the case, and one testifies to Congress that politics drove the decision to file the second memorandum. 

Rohde cites Barr’s actions as an example of the “shredd[ing]” of “Justice Department and post-Watergate norms.” But two facts that Rohde himself includes undermine his characterization, and others that have emerged since he prepared his manuscript undermine it substantially further. First, as Rohde reports, Barr made the decision to overrule the filed recommendation on his own on the evening of Feb. 10, hours before the president’s tweet. Second, the trial judge (Amy Berman Jackson, an Obama appointee) agreed with the second memorandum that the first recommendation had been excessive, imposing a 40-month sentence instead. And a detailed inspector general report released this summer (after “When Tyranny Begins” went into publication) provides further color. The inspector general found no evidence that Barr formed his judgment on the basis of any improper political considerations or with any input from the White House. There are legitimate questions about whether it’s a sensible practice for an attorney general to weigh in on an individual sentencing matter. But the inspector general found that Barr became involved here only because the U.S. attorney in D.C., who was skeptical of the prosecution team’s approach and struggling with the issue, affirmatively asked that he give his view in advance of the first filing. The second memorandum was filed when Barr discovered that the direction he had given in response to that request had not been carried out, a failure the inspector general attributes to the U.S. attorney’s incompetence. And while people can—and, here, did—fairly come to differing judgments about something as subjective as sentencing, Judge Jackson’s ultimate decision to impose a sentence consistent with the recommendation of the second memorandum and not the first certainly suggests that Barr’s substantive conclusion was at least a reasonable one, and perhaps the most reasonable.

Indeed, the inspector general report vividly describes a tense meeting between Barr and some of his senior advisers the morning following the president’s post-midnight tweet, at which some of those advisers proposed modifying the decision that Barr had made the evening before to file a second sentencing memorandum. They did so because they knew the tweet would make a change in the department’s public position look devastatingly political. Barr refused, asserting that “reacting to the tweet” in any way would be wrong: “Stone should not receive negative or favorable treatment because of tweets.” Wherever one might come down on the substance of the sentencing recommendation, this was obviously the correct position—and an admirable one to take in light of the attacks that would inevitably follow. Fear of public criticism should never lead anyone in the department to endorse what they believe to be an excessive prison sentence for anyone. 

Today, most of the attacks on the Justice Department (and all of the most inflammatory ones) come from Trump and his supporters, who decry the department as politicized while laying plans to politicize it themselves. But disdain for the department’s norms of political neutrality come from some on the other side as well. Rohde reports that several of Attorney General Garland’s decisions to apply long-standing institutional positions at the Justice Department—for example, by maintaining the confidentiality of deliberative internal memos involving Barr’s review of the Mueller report, or supporting dismissal of civil lawsuits seeking to impose personal liability on Trump and Barr for the removal of protesters from Lafayette Square—“angered Democrats.” He observes that some of the norms Garland followed “inadvertently helped Trump” because, among other things, adhering to principles that prohibit investigating individuals because of their political beliefs made the Jan. 6 investigations “slower.” And he quotes progressive activists who complain that Garland is overly concerned with “process” and who called for his ouster early on in the Biden administration, urging that he be replaced with an attorney general who “wake[s] up every day raring to neutralize” Trump to better prepare for the “inevitable battle... in 2024.”

While Rohde stops short of endorsing those calls, his view is that those activists “grasped something” that Garland did not—that “restoring ‘normal’ order alone would not be enough to counter Trump’s ceaseless and systematic efforts” to discredit the Justice Department. He thus sees Garland as yet another naïve institutionalist who has underestimated his opponent. But this gives Garland far too little credit. 

Merrick Garland has shown himself to be a person deeply comfortable in his own skin, and a focus of his approach as attorney general has been to reinforce the Justice Department’s core principles and model them in his own decision-making. Garland certainly sees the path forward differently than the activists who believe his raison d’etre should be to get Donald Trump, but that is not because he trivializes the dangers the country faces. Indeed, in an address in the department’s Great Hall describing his approach, he emphasized that “we adhere to these norms even when, and especially when, the circumstances we face are not normal.” Although Rohde considers Garland naïve, the better understanding is that Garland fully recognizes the ways in which adherence to norms can sometimes place the department at a near-term disadvantage—particularly when faced with an unscrupulous opponent with a skill for demagoguery and a large public following. But he has concluded that prioritizing consistent fidelity to the department’s established values will best serve the country in the long run.

In assessing Garland, Rohde frames the “urgent question” facing the attorney general when he took office as how best to:

respond to the challenge of Trumpism. Could the new attorney general show that non-partisan public service was still possible in a deeply polarized country? And could he restore public faith, particularly among Republicans, in the impartiality of the Justice Department?

These are, of course, two very different questions. The first asks how a public official should serve, which is entirely under his control. The second asks how the public will react, which is largely outside his control. Garland has shown that the answer to the first question can be “yes” even when the answer to the second will still be “no.” Rohde’s interesting book illuminates the difficulties that adherence to the Justice Department’s long-standing norms can generate, but it is ultimately unclear whether and to what extent Rohde actually believes a markedly different balance should be struck. Many of those norms are grounded in principles of fundamental fairness, neutrality, and restraint in the exercise of power. A case against maintaining them would have to be based on more than simply showing that they weaken the department’s position on cable television.