Dahlia Lithwick and Michael Podhorzer write:

In another least-surprising surprise of our times, last week Donald Trump expressed his intent, if elected to a second term as president, to utilize his Justice Department to destroy his political opponent. The New York Times reported that Trump had promised, in a speech after his arraignment, to “appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family,” and went on to explain the plan to reinvent a DOJ entirely beholden not to the laws of the land, but the president. As the Times noted in its opening paragraph, such a move would “fully jettison the post-Watergate norm of Justice Department independence.”

It’s interesting that we still refer to the proposition that the White House doesn’t direct the DOJ to go after political rivals as a “norm”—much less a norm the White House has observed since Watergate—when in actual fact, only Democratic administrations have adhered to this standard. Long before the Trump era, George W. Bush deployed theories of a “unitary executive” to make claims about a DOJ that answered to him.

Trump’s own use of his Justice Department during his term as president to go after political enemies and reward sycophants is well documented. Whether it was issuing subpoenas for Adam Schiff and Eric Swalwell for investigating Kremlin election meddling, conscripting his attorney general, Bill Barr, to distort the findings of the Mueller investigation, or roping John Durham into investigating the origins of the FBI’s inquiry into Russian election interference, no sane person believes there was a meaningful wall of separation between Trump and his DOJ. And there wasn’t a word of concern from Rep. Kevin McCarthy, Sen. Mitch McConnell, or Rep. Jim Jordan when the Jan. 6 hearings revealed the extent to which Trump had leaned on his Justice Department to support his claim that the 2020 presidential contest had been stolen, including telling acting Attorney General Jeffrey Rosen to “Just say the election was corrupt and leave the rest to me and the Republican congressmen.” It was understood that Trump thought his DOJ worked for Trump.

But do you know who has adhered to the norm that walls off the DOJ from the White House? President Joe Biden. And the attorney general he appointed, Merrick Garland. And special counsel Jack Smith. They have taken elaborate care to keep Trump’s criminal investigation at arm’s length from the White House. This is not an aberration for Democratic administrations. Remember, Loretta Lynch stepped away from the Hillary Clinton email investigation (leaving it to Jim Comey’s judgement) just because she had run into Bill Clinton on a plane tarmac. Democratic leaders in the White House have taken pains to not just reaffirm the norm that separates the two entities, but to rebuild it as more of an immutable border than it was before. [Continue reading…]