In a recent response to his indictment, Donald J. Trump vowed to appoint a special prosecutor if he wins re-election to go after President Biden and his family. This statement reveals Trump’s intention to abandon the norm of Justice Department independence established after Watergate. Trump claimed that the charges against him are politically motivated since he is Biden’s opponent, and he would counteract this alleged politicization by appointing an ally who would bring charges against his political enemies, regardless of the evidence.
However, this assertion overlooks the fact that two Trump-appointed prosecutors are already investigating Biden’s handling of classified documents and the financial dealings of his son, Hunter, under Attorney General Merrick Garland. By dismissing these current prosecutors as not being “real,” Trump seems to be assuring his supporters that he would appoint someone who would charge his political adversaries, regardless of the facts.
Trump’s promise is part of a broader movement on the right to diminish the power of the FBI and overhaul the Justice Department, which conservatives argue has been “weaponized” against them. Key figures in this movement, Jeffrey B. Clark and Russell T. Vought, both work at the Center for Renewing America. Clark, who oversaw the Justice Department’s civil and environmental divisions during the Trump presidency, attempted to help Trump overturn the 2020 election. Vought, the former director of the Office of Management and Budget, is also involved in this effort.
Clark and Vought advocate for a legal rationale that would fundamentally change the relationship between presidents and the Justice Department. They argue that presidents should not keep federal law enforcement at arm’s length but should treat the Justice Department like any other cabinet agency. While criticizing Biden and Democrats for politicizing the justice system, they are promoting an intellectual framework that a future Republican president could use to direct law enforcement investigations.
Clark, a favorite of Trump’s who may be considered for a senior Justice Department position if Trump is re-elected in 2024, wrote a constitutional analysis asserting that the Justice Department is not independent. He takes a maximalist view of the unitary executive theory, which grants the president control over the entire federal bureaucracy. Trump shares this view but has not been seen studying the Federalist Papers.
In statements to The New York Times, both Clark and Vought intensify their battle against the Justice Department. Clark presents it as a fight for America’s survival, while Vought claims that federal law enforcement is weaponized against conservatives, leading to paradigm-shifting policies to reverse this trend.
Throughout his presidency, Trump exploited gaps between legal rules and traditional presidential norms. Efforts to codify these norms into law, such as the Protecting Our Democracy Act, have been obstructed by Republicans who view them as attacks on Trump. The modern concept of Justice Department independence emerged after the Watergate scandal, with the understanding that presidents could set broad policies but should not interfere in specific criminal case decisions unless there are extraordinary circumstances.
As the Republican Party changes under Trump’s influence, his attacks on federal law enforcement have become ingrained in the ideology of his supporters. Other Republican candidates, including Governor Ron DeSantis of Florida, reject the idea of Justice Department independence.
Conservative think tanks and media channels are pushing for sweeping changes to the FBI, claiming that it is a political weapon for the ruling elite. They argue that the agency should be rebuilt from scratch instead of implementing minor reforms.
In summary, Trump’s promise to appoint a special prosecutor to investigate Biden reveals his intention to dismantle the norm of Justice Department independence. Clark and Vought, influential figures in this movement, advocate for a new approach to presidential control over the Justice Department. Conservative think tanks and media outlets are also pushing for significant changes to the FBI.
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