“You sly dog!” Syndrome exclaims during a battle with Mr. Incredible, “You got me monologuing!” If you remember the scene from the Disney Pixar movie “The Incredibles,” you recognize the parody of the cliché villain’s monologue: a tiresome explanation for his evil deeds that often leaves the hero with enough time to regroup and escape the villain’s clutches. Syndrome justified his evil deeds with a story about how Mr. Incredible dismissed his help with contempt. Every good villain has a justification for his evil acts—a lost love, a bad parent, an orange president.
Approximately 2,000 former Department of Justice attorneys (pronounced, “Just-Us,”) recently penned their latest villain’s monologue in the real-life get-Trump saga. Like all the villains out to undo the 2016 election, they express soaring but characteristically vague rhetoric about their “constitutional” duties to save the republic. Grab your barf bag because the sanctimoniousness is pretty thick. They wrote,
We, the undersigned, are alumni of the United States Department of Justice (DOJ) who have collectively served both Republican and Democratic administrations. Each of us strongly condemns President Trump’s and Attorney General Barr’s interference in the fair administration of justice.
As former DOJ officials, we each proudly took an oath to support and defend our Constitution and faithfully execute the duties of our offices. The very first of these duties is to apply the law equally to all Americans. This obligation flows directly from the Constitution, and it is embedded in countless rules and laws governing the conduct of DOJ lawyers.
At no point does the letter actually cite the Constitution. It must be easy to be a get-Trump attorney because the law is just a lump of clay in your partisan lawyer hands. Where does the Constitution say the attorney general cannot interfere with career prosecutors’ decisions? The Department of Justice is not mentioned in the written Constitution and there are certainly no directives in it about how it should be operated. It’s in the part they made up. If you can make up the law, one perk is that you can always be an expert on it.
In fact, as I recently wrote, the Constitution actually provides for executive “interference” in prosecutions in two places. First, Article II makes the president (who is accountable to the voters) the head of the executive branch. The golden thread of control that connects the ballot box to the awesome power of the federal prosecutor passes through the elected president. A president has a duty to check the terrifying power of a prosecutor run amok—which the Stone prosecutors absolutely did. Second, he has the un-appealable power to cancel any prosecution. In 1974, for example, President Ford issued a blanket pardon for categories of Vietnam War draft dodgers and deserters—even when no charges were pending against many of the beneficiaries of that pardon.
Roger Stone is the target of a transparently political prosecution. He was investigated for gossiping about Wikileaks but had no actual involvement with any crime or email hacking or anything to do with anything. As the investigation into his gossip progressed, the process crimes piled up. It’s pretty disgusting that these prosecutors would argue that the Constitution mandates a 9-year sentence for Stone when confirmed liar Andrew McCabe gets nothing for lying to FBI investigators. They don’t care about equal justice under the law. They just want to get Trump. Everyone can see that.
These lawyers argue that the prosecutor’s judgment has a superior position in the constitution to the judgment of the elected chief executive (the president). That’s a made-up nonsense rule that former bureaucrats advocate to undermine the impact of elections on the highly-sensitive core executive function of criminal prosecution. If we bowed to their demands, our country would become a police state of unaccountable prosecutors terrorizing the public.
One of the great gifts of the get-Trump movement is that it should remind comfortable and successful people that they need civil liberties. If you have some spare time, watch this presentation from a victim of out-of-control prosecution that predated the get-Trump era. Dr. Howard Root ran a successful medical supply company. He became the target of a runaway prosecutor. His experience calls to attention the fact that the federal system can basically bankrupt and destroy anyone and any business without ever proving anything to a jury.
Constitutional guarantees of speedy trial are essentially meaningless for a defendant in a federal case. A prosecutor can indict a ham sandwich and then drag a defendant through years of hell including intrusive search warrants and slanderous pre-trial publicity without ever proving anything. By the time it’s over, few defendants can resist taking some sort of plea deal regardless of their true guilt.
The former Justice Department attorneys’ open letter is far from the first villain’s monologue. We can all recall that shortly after the 2016 election, Nancy Pelosi’s daughter was among a group of electors who signed an open letter demanding a “briefing” from the intelligence community to convince members of the electoral college to nullify the election results. She meant the Steele dossier, the now debunked smear we know was paid for by the Clinton campaign. Had that briefing taken place without the benefit of what we now know about the Russia collusion hoax, the election likely would have been stolen.
Even earlier, in 2016, former intelligence officials wrote an open letter claiming that electing Trump would be a threat to national security. They warned, “Furthermore, his expansive view of how presidential power should be wielded against his detractors poses a distinct threat to civil liberty in the United States.” We later learned that legacy intelligence officials were actually the ones perpetrating a massive and ongoing civil liberties crisis that pre-dated Trump.
As part of my research for this article, I’ve been searching high and low for the open letter from these same attorneys in which they condemned President Obama for interfering in the criminal investigation of Hillary Clinton. In April of 2016, in an interview in which he was asked about the FBI investigation of Clinton’s mishandling of classified emails, Obama said, “Hillary Clinton was an outstanding Secretary of State. She would never intentionally put America in any kind of jeopardy.” The very next month, May of 2016, then-FBI Director James Comey circulated early drafts of his speech exonerating Clinton based on her lack of intent. As noted by then-FBI attorney Lisa Page who, at the time was assigned to the Clinton email investigation, the decision to exonerate Clinton already had been arrived at, long before Comey delivered his speech.
But Obama’s decision to publicly announce his position on the potential Clinton prosecution is actually defensible in terms of his constitutional role as president. The public nevertheless was right to respond to the perceived unfairness by punishing both of them at the ballot box—which, arguably, is exactly what they did.
By the same token, these 2000 attorneys are all free to cast their votes against the president in November. That’s how the Constitution works. Ironically, the get-Trump forces have spent so much time trying to find a shortcut alternative to making their case to the voters, they’ve deprived their actual candidates of the oxygen needed to build support in the upcoming elections. We can only hope that the failure of the get-Trump movement to gin up a paper coup against the elected president will deter future attempts.