Over at Executive Functions:
Here was another episode in the series of this administration’s challenge to norms that constrain presidential abuse of power. Trump was directing the attorney general to initiate an investigation in disregard of any notion of DOJ “independence” in criminal law enforcement. At the same time, he was also ordering up an inquiry into a key source of fundraising for the opposition party, exercising this power to his own party’s evident political advantage.
This is more than the “latest sign of eroding guardrails” in insulating the department from political control. It is the wholesale rejection of those guardrails and an ongoing effort to replace them with a fully considered process by which a president may direct, as he has in this instance, a criminal investigation for political purposes. Fully appreciating the significance of this process requires close attention to the structure of the ActBlue directive and its implications. And it is important that this evaluation be divorced, in this or any case, from the question of the merits of any allegations. The sole concern here is what this kind of process, directed by the president in the manner described below, means for political abuse of federal criminal law enforcement….
This president made clear in his first term that he saw no reason why he should not control the Department of Justice. Now, in his second term, he is asserting that control and is doing so, as in the dismissal of the Mayor Adams case, in politically charged matters. Any White House counsel who agreed to take the job presumably understood what it might, in this respect, require. But the ActBlue intervention is of a different order than presidential intervention in specific cases the department has prosecuted in the ordinary course, even if these interventions also may do serious damage to norms insulating criminal law enforcement from political control. The process established to target ActBlue is now ready-made for systematic use in White House demands for specific investigations of specific persons, including, as in this case, an organization active in support of the opposition political party.
It is important note that while the president has previously directed an inquiry of a foe—Christopher Krebs, the head of the Cybersecurity and Infrastructure Security Agency during the first Trump administration—this action, while similar, is not the same in key respects as the criminal investigation that Trump has ordered in the case of ActBlue. Krebs had infuriated the president by affirming the secure conduct of the 2020 elections. But in his case, in addition to stripping him of his security clearances, the president directed only a “review” of his activities as a government employee and did not explicitly order a criminal investigation—much less one purportedly justified by his citation to “extremely troubling evidence” of illegal conduct.
The White House counsel is playing a major supporting role in the thoroughgoing demolition of core rule-of-law norms in the ActBlue action. One cannot know in detail, of course, how the White House counsel advised the president in this matter. But while, as noted, the issuance of the memorandum in tandem with the fact sheet reflects some lawyering, it is, at best, cosmetic in nature. To long-time critics of the institution of the White House counsel, who have alleged that it is more enabler than true counsel, this will come as no surprise. However one views the fairness of this charge as leveled at past administrations, the conclusion to be drawn in this one seems inescapable: The enabling has crowded out the counseling….