Some former Justice Department officials who served under Donald Trump during his first term fear that the Supreme Court’s recent ruling on immunity will make it easier for him to use the department against his enemies if he is re-elected as president.
Other former officials either downplayed the impact of the ruling or endorsed it.
Two former Justice Department officials, who spoke on condition of anonymity, said the ruling would embolden Trump. They said it would give Trump cover to improperly pressure the Justice Department for his own political gain — to prosecute an enemy or spare an ally — by saying he was carrying out his official duties as president.
“It gives him tacit approval to keep doing it,” said one former official, who spoke on condition of anonymity, referring to the Supreme Court ruling. “It allows him to do the things he said he would do: investigate people and send them to prison.”
The majority opinion, authored by Chief Justice John Roberts, concluded that Trump’s efforts to overturn the results of the 2020 election by inducing Justice Department officials to launch investigations into unsubstantiated claims of widespread voter fraud were “absolutely immune” from prosecution.
“The allegations in the complaint that the requested investigations were shams or were proposed for an improper purpose do not deprive the President of his exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,” Roberts wrote. “Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his conversations with Justice Department officials.”
Jeffrey Clark, the low-ranking Justice Department official whom Trump tried to appoint as acting attorney general on Jan. 3, 2021, praised the ruling. After half a dozen senior Justice Department officials threatened to resign, Trump backed away from appointing Clark, who supported his claims of voter fraud and planned to send a letter to the Justice Department asking Georgia officials not to certify those election results.
“He can investigate whoever he feels is necessary to investigate, in coordination with the Justice Department,” Clark said, referring to each president, in an interview for a podcast this week. “And he can prosecute whoever he feels is necessary to prosecute.”
The former Justice Department official who said the ruling gave Trump “tacit approval” said it was also a road map for Trump to avoid prosecution. He said Trump showed in his first term that he is careful not to openly ask anyone to do something illegal. The official predicted that would continue.
“Trump operates in such a way that he never openly tells anybody to do something,” the former official said. “He hints, he pushes, he prods. He never had to instruct these people to do it. They just went ahead and did it themselves.”
Another former Justice Department official voiced support for Judge Amy Coney Barrett’s dissent, which would have limited a president’s immunity. The former official said Roberts’ overwhelming majority opinion was wrong when it said investigators could not use a president’s communications with the attorney general as evidence of a crime.
“If the president and his attorney general are having drinks in the basement late at night and talking about how to break into the headquarters of the Democratic National Committee,” said the former Justice Department official, imagining a Watergate-like scenario, “such a communication should not be inadmissible as evidence in a criminal prosecution simply because it is a communication between the president and his attorney general.”
Will Levi, who served as Justice Department chief of staff under Attorney General William Barr, disagreed and defended the ruling, saying the majority opinion simply reiterated a long-standing constitutional principle that criminal investigations should be free from political interference.
“This is just an expression of the president’s authority under the Constitution over the executive branch, including the Justice Department,” Levi told Bloomberg News. “The importance of ensuring the independence of a criminal investigation or prosecution of improper political interference is an extremely important but clear standard.”
Supporters and opponents of the ruling agreed that officials should refuse to carry out unlawful or illegal orders from Trump or any future president.
A former senior official at the FBI, which conducts federal criminal investigations and is part of the Justice Department, said agents will not execute illegal warrants because the agents do not have absolute immunity and can be prosecuted themselves.
“Nobody under the president has absolute immunity,” the former senior FBI official said. “So anyone who does this is putting themselves in legal jeopardy.”
The first former Justice Department official to publicly attack Trump for a position he took said it was naive. He said the ruling would “embolden” Trump and that he would continue to use public attacks as he did in his first term to discredit special counsel Robert Mueller’s investigation and delay other investigations into his conduct.
“The use of the tweets, in which Trump openly attacks prosecutors and government employees, often by name, directly disrupts the functioning of the Justice Department. It intimidates prosecutors into doing things they normally wouldn’t do … It’s clearly a way to pressure employees,” the official said, citing his own personal experience. “It’s hard for a career civil servant to be on the other side of that.”
This article was originally published on NBCNews.com
