Is Trump Working On a Different Kind of ‘Massacre’?

Is Trump Working On a Different Kind of ‘Massacre’?

Is it churn, an exodus or a purge?

That is the key question for a series of departures and reassignments that are reshaping who runs law enforcement in the Trump administration. Rachel Brand, the prosecutor next in line, after Deputy Attorney General Rod Rosenstein, to oversee the special counsel Robert Mueller, confirmed her departure on Friday night, after just nine months on the job.

She follows the F.B.I. director James Comey, his deputy, his general counsel, an acting assistant attorney general (in the National Security Division) and other top officials who are now fired, gone or reassigned.

After President Trump fired Mr. Comey, in fact, a news report listed the top “three officials” left running the Russia probe last May. Two of them are now out. The third, Mr. Rosenstein, was recently publicly undercut by Mr. Trump, who suggested to reporters that he did not have confidence in him.

These dramatic staffing shifts are occurring against the backdrop of a sustained attack on law enforcement by the president and his allies. If this is a partisan purge, it is slowly grinding forward in plain sight.

Analogies to President Richard Nixon are common these days, and some observers have begun comparing these staffing changes to a slow-burning Saturday Night Massacre. In one night, Nixon ordered the firing of the Watergate special prosecutor, and both the attorney general and his deputy resigned rather than comply.

There are certainly disturbing parallels. A president lashing out at an investigation into his office. Questions of whether raw power can be abused to subvert justice.

But so far, there is an important difference.

Nixon’s massacre was propelled by one brazen goal: firing the prosecutor investigating him. It was a corrupt objective that tainted the entire effort, and the White House admitted it. On that infamous evening, in fact, Ron Ziegler, Nixon’s White House press secretary, claimed that the “office of the Watergate special prosecution force has been abolished.” It had not.

The legal history is instructive. The rank-and-file prosecutors who worked for that office showed that it was not abolished; within a few days they were back in court, urging a judge to grant subpoenas and a measure to hold the president in contempt. Public and congressional pressure led to the appointment of another special prosecutor. And that’s not all.

On a separate litigation track, critics and members of Congress sued. They argued it was illegal for Mr. Nixon to order the firing of the special prosecutor. They won.

A Federal District Court ruled, in Nader v. Bork, that Mr. Nixon “illegally discharged” the prosecutor because he “did not serve at the president’s pleasure.”

That case holds both peril and promise for Mr. Trump.

The risk comes in the precedent. It shows how even if a president gets the Department of Justice to do his dirty work, judges have the final say. They can keep prosecutors on the job. (With different facts and law, the Nixon case does not predict how courts would rule today on any potential removal of Mr. Mueller. But courts do have the power to reverse an illegal firing.)

The promise for Mr. Trump comes in how he is pressuring the Justice Department. He may be reshaping law-enforcement leadership, and the key people around the Russia probe, without actually crossing into the potentially illegal firing of a special counsel.

In other words, Mr. Trump may be slowly bending the system and personnel toward him, without explicitly ordering people to choose between their job and Mr. Mueller’s job.

That can build internal resistance to whatever Mr. Mueller ultimately finds, stacking skeptics around him. Indeed, few legal experts say firing federal appointees is itself illegal. (In an obstruction case, prosecutors look at how firings form one element of a wider plot.)

Has Mr. Trump decided to pursue his Russia agenda through this method, having learned the red line — trying to get Mr. Mueller fired, which his own White House counsel reportedly threatened to resign over — is not worth the personal risk?

To observe that this tarrying plot may be lawful is not, of course, to endorse it.

Finding technically legal ways to grind down, pressure and reshape law enforcement is an affront to our constitutional democracy. It weeds out the type of independent public servants who are supposed to be in these posts. It invites partisanship and abuse. It undermines public confidence in the one institution that we trust to patrol, prosecute and even kill our fellow citizens.

Mr. Nixon was unusual. He was both a crook and an institutionalist. On the one hand, he ordered crimes and tried to break the Justice Department. On the other, he complied with key court orders in Watergate and resigned when Congress drew a line on impeachment.

We don’t know whether Mr. Trump ordered any crimes. Mr. Mueller is investigating that.

We do know Mr. Trump is not an institutionalist. That is ominous, because it raises a grave question about what he would do if confronted with an existential choice about his presidency.

If there is a lesson for the public and Congress here, it is that as with so many other Trump activities, do not underestimate him.

Mr. Nixon targeted the special prosecutor in such a rapid spectacle that it backfired. Mr. Trump can be a quick study, at least on matters involving his own self-interest. Through trial and error, he may have learned that blatantly removing Mr. Mueller is bad for him. He may have learned purges are best served slowly. He may have learned that under the law, some of the big calls at the end of the Russia probe, like whether to release public findings, are not up to Mr. Mueller.

Those calls are up to the acting attorney general for the case, Rod Rosenstein.

The Saturday Night Massacre backfired because everyone could see it was a massacre in real time. The public, Congress and the courts may be girding for another “massacre.” It is vital to identify it correctly, however, in order to know when to go to the mat.

The next massacre may not announce itself, it may appear legal at first, and it may not even directly target Mr. Mueller. But if it is designed to fundamentally obstruct his investigation, or force the acting attorney general to hide the results when they arrive, that could be a massacre in the making.

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