Trump's America: Judiciary threatened, rule of law falters

The authors of the American constitution were wise, diligent and farsighted. They knew many things, but one thing they knew well that all future presidents could not be trusted to defend the constitution though they would take solemn oath prior to taking the office. They had hoped that future presidents would follow the footsteps of George Washington, Abraham Lincoln, Franklin Roosevelt and John Kennedy but at the same time feared that people might elect unscrupulous leaders like Richard Nixon, George W. Bush and Donald Trump at some stages. This apprehension prompted the authors to insert "checks and balances" in the constitution, entrusted the Congress with all legislative powers and vested judicial powers in the Supreme Court and in courts as the Congress from time to time may establish. The president enjoys vast powers but cannot declare war against a country or impose taxes on the people without approval of the Congress. The "Checks and balances" were incorporated to restrain a president from transforming into a despot.

The Department of Justice (DOJ) is headed by the Attorney General (AG). He/she is appointed by the president. Once appointed, the Attorney General, unlike other members of the cabinet, conducts in a unique style. He attends the cabinet meetings, undertakes special assignments but refrains from carrying out functions that have ramifications on the president or the party he/she belongs to. The Attorney General is required to maintain neutrality though he and his deputies participate in the litigations defending the administration. The AG cannot take the role of the personal attorney of the president or any of his colleagues in the government. This is a thin line the AG and the deputies must walk through.

Senator Jess Sessions was the first Attorney General appointed by President Trump. He was one of the few Senators who endorsed the candidature of Donald Trump and remained active in the presidential campaign. He was rewarded with the appointment as the AG in the new administration. He took the office at a time when the Intelligence Agencies were loud in alleging Russian interference in the presidential election in which Trump scored victory. The DOJ appointed a special counsel headed by former FBI Director Robert Mueller to investigate the alleged foreign interference in the presidential election. Since the Special Counsel would operate within the guidelines set by the DOJ, Jeff Sessions deemed it appropriate that he should not oversee the conduct of the special counsel. Sessions therefore recused himself from the responsibility and delegated the function to the Deputy Attorney General.

Trump did not acquiesce this delegation of responsibility to Deputy Attorney General and inveighed against Sessions. The vilification continued for about two years and in December 2018 Sessions tendered his resignation. After a quick search Trump selected William Barr as the new Attorney General. The Senate approved the appointment.

The Special Counsel led by Robert Mueller interviewed many witnesses about their roles and or knowledge of Russian interference in the presidential election. Some high-profile witnesses including former Chief of Staff Michael Flynn, Trump Campaign Manager Manafort pleaded guilty in exchange of lenient sentences. The prosecutors had recommended a prison sentence of seven to nine years for Roger Stone, a close associate of Trump, after he was convicted in November 2019 on seven counts of witness tampering, lying to the Congress and obstruction of justice.

As the Special Counsel was making headway Trump got increasingly worried, accused Mueller's team for witch-hunt and seriously considered dismissing the special counsel. He was, however, restrained by Republican Senators and allowed the tenure of the tribunal to come to an end. In fall 2019, the Special Counsel submitted its report confirming wrong doings of Trump but did not indict him because he was holding the office of the President. Trump by no way was exonerated by the Special Counsel.

Notwithstanding the demands of the members of the Congress and Senators Barr declined to release the full report. He drafted a summary of the report claiming that Trump did nothing wrong and circulated the same for public consumption. Robert Mueller was summoned by the Congressional Committee but could not dispel the contradictions between his report and the summary circulated by the Attorney General's office.

Trump appeared to have been emboldened after being acquitted by the Senate of the impeachment charges. Before proceeding to Florida on weekend recess on February 14, he reprimanded the DOJ officials for recommending severe punishment to his close associates Roger Stone, Michael Flynn, Manafort and others. Trump said "the whole deal was a total scam" and suggested "Stone's conviction should be thrown out." Barr, in a tune of annoyance, blamed Trump that he could not do his job due to avalanche of tweets emanating from the president. Barr, however, denied that president had ever spoken with him about the criminal cases. But on the following day, four DOJ prosecutors withdrew from the cases and one of them resigned from the department, in protest of Trump's interference in the cases being adjudicated.

The withdrawal of three DOJ officials from conducting the cases and the resignation of another did not go un-noticed. Over 2,000 former DOJ officials, in a letter addressed to Barr, urged him to uphold the independence of the department. They alleged, "Mr. Barr's actions in doing the President's personal bidding unfortunately speak louder than his words. Those actions and the damage they have done to the Department of Justice's reputation, integrity and rule of law, require Mr. Barr to resign." The letter calls on every DOJ employee "to follow the heroic example of the four prosecutors who quit the Stone case and be prepared to report future abuses to the Inspector General and the Congress; to refuse to carry out directives or other misconduct, and if necessary, to resign and report publicly in a manner consistent with professional ethics - to the American people the reasons of their resignation."

The head of the Federal Judges Association has also convened an emergency meeting to address growing concerns about political interference in criminal cases. Barr, under mounting pressure from the lawyers' community, is reported to be seriously considering leaving the job.

It is unlikely that Trump would pay heed to the grave concerns expressed by former DOJ officials and the paramount importance of independence of judiciary. This has been manifested by when he commuted the sentence of former Illinoi Governor Rod Blagojevich, on Tuesday, February 18. Blagojevich was convicted eleven years ago for trying to sell President-elect Barack Obama's Senate seat. Another ten inmates serving prison sentences on charges of corruption, fraud, obstructing investigation, perjury and smuggling of drugs were pardoned or their sentences commuted on Tuesday. It is not clear whether Trump acted on the advice of Barr or did at his own. The White House declared, "all these eleven people were unfairly treated or had repaid society through good works". Most are white men with connections to power, and in some cases, to Trump himself. The Washington Post reported that Tuesday's clemency was announced circumventing the usual DOJ process.

Trump defended his actions, saying he has the right to shape the country's legal systems as he sees fit. He boasted, "I am actually, I guess, the chief law enforcement officer of the country."

The process to subjugate the DOJ and the courts was set on motion since the Republican Party took control of the Senate and House of Representatives in 2014. Hundreds of nominations for the Supreme Court and Circuit courts were kept pending by the Senate during the final years of President Obama. Following the presidential election in 2016, the Senate resumed nominating persons with conservative background having aligned with the Republican Party for the vacancies at the courts as well as in the department. Trump and his party cohorts have set a dangerous precedent by recruiting judges on party lines which will engender autocracy and endanger rule of law in the United States.

Abdur Rahman Chowdhury is a former official of the United Nations.

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