DOJ’s Threats to Congress and Teeth Gnashing Cannot Obscure The Agency’s Substantially Weakened Position Protecting Trump

It’s no coincidence that the DOJ is featured in two major simultaneous New York Times pieces: White House Threatens Congress, Saying Aggressive Investigations Could Be Crime and A Diminished Justice Dept. Braces for Fresh Fights After Midterm Loss.

The latter article explains that DOJ’s ranks have been emptied, not only losing stellar career lawyers but also smart MAGA-friendly lawyers who signed on for Trump’s second term. The reason for this depletion is that Trump and his political leaders have made demands on DOJ that are irreconcilable with zealous but ethical lawyering. DOJ has been consistently dishonest with judges, often disobeying or ignoring lower court orders, and not presenting matters fairly and in line with the facts. That has cost it the “presumption of regularity” in many courts—basically the benefit of the doubt that DOJ built up over generations for being excellent lawyers who put the public interest first. The second article strongly suggests that Harmeet Dhillon, who did much of Trump’s bidding as head of DOJ’s civil rights division, was not willing to sign on to the Alaska litigation trying to block certification of its U.S. Senate election. As explained in our amicus brief, the arguments were laughably bad; the League of Women voters is asking for sanctions in the 9th Circuit, and its not unreasonable given the circumstances.

That there are not enough (excellent) lawyers with credibility and ethics willing to do the DOJ’s dirty work is some testament to the resilience of the legal profession. which pushed back, but not nearly hard enough—with many major law firms falling all over themselves to capitulate to Trump at the start of the second Trump Administration. Some lawyers are leaving DOJ for more selfish reasons; they see the writing on the wall that MAGA could well have crested and would not be a great resume entry any longer. Whatever the reason, the depletion of DOJ’s ranks comes at a very inopportune time, just as Congress changes hands to Democrats.

Congress is supposed to do oversight and be an equal branch of government; what it had in Mike Johnson was a House quisling, and in John Thune a conservative pushing to hold together traditional conservatives and the MAGA fringe in his own Senate caucus. The result has been an absent Congress for the first two years.

The Constitution gives special powers to Members of Congress and their staffs against executive encroachment via the Speech or Debate Clause. So Trump lawyer Will Sharf’s threats to prosecute Democrats for doing their oversight of the executive branch is toothless, even frivolous. The letter cites no authority that would actually allow DOJ prosecutions of members of Congress and their staffs for doing their job. Courts won’t stand for it. DOJ stripped of its legitimacy, files weaker cases and just loses. It’s like the (third) indictment of former FBI director James Comey for the bullshit “seashells” 86-47 threat. I don’t know a single lawyer who thinks that case has any chance of success.

So what is this threatening Congress all about? It reminds me of the advice I’ve heard when you see a bear in the woods. Make yourself look as big and large as possible. It’s a bluff to scare the bear away.

It won’t work this time.