Can America Restore the Rule of Law Without Prosecuting Trump?

The Justice Department had by now been transformed under Barr. There seemed to be no Trump problem that the agency wouldn’t at least try to fix. It began a counterinvestigation into the F.B.I.’s investigation into Trump’s campaign, tried to block the distribution of a memoir by the former national security adviser John Bolton that was unflattering to Trump and intervened in a defamation lawsuit brought by the author and columnist E. Jean Carroll, who accused Trump of raping her in the mid-1990s, arguing that Trump’s insulting comments about her fell within the scope of his official duties as president. (Trump has denied Carroll’s allegations.)

Trump, meanwhile, continued to test the limits of his seemingly limitless authority. He pushed out five inspectors general charged with overseeing the conduct of the executive branch, commuted Stone’s prison sentence and openly defied the authority of the other two branches of government in an effort to stoke his political base. Rather than nominating Chad F. Wolf, who oversaw the administration’s “law and order” response to the racial-justice protests in Portland, Ore., to serve as secretary of the Department of Homeland Security, Trump appointed him acting director to avoid the Senate confirmation process. Even after the Government Accountability Office and a federal judge ruled that Wolf was most likely serving in his job illegally — and that many of his actions may have thus been unlawful — Trump left him in place. He similarly disregarded a federal judge’s order compelling him to restore the Obama-era DACA program that enabled hundreds of thousands of immigrants to remain in the United States.

Even as Trump was exercising his power in bold new ways, the potential threats awaiting him if he lost the election were proliferating and intensifying. Not only was the Manhattan D.A.’s investigation progressing, but a watchdog group had accused Trump’s re-election campaign of illegally funneling $170 million in funds to unidentified recipients through firms controlled by the campaign’s recently deposed manager, Brad Parscale, and other officials. (The Trump campaign denied any wrongdoing.) Out of office, Trump would almost certainly face financial problems too. The presidency had been good for business, bringing in tens of millions of dollars in foreign projects to the Trump Organization, providing a steady stream of favor-seeking patrons to Trump’s Washington hotel and allowing Trump and his children to bill the government for hundreds of “official visits” to his properties. But his golf courses had been losing millions of dollars every year, and he had $421 million in personal debt obligations, most of which is coming due in the next four years.

And so, in the final weeks of his term, Trump moved into a new sphere of potential criminality, directing all of the weight of the government’s executive branch toward his re-election effort. He turned the White House into a stage prop for the Republican National Convention, pardoning a former prisoner and participating in a naturalization ceremony as part of the festivities. In October, days after checking out of Walter Reed hospital with Covid-19, Trump held a campaign rally on the South Lawn. Even this was not enough to move his poll numbers. Still trailing in the final days of the campaign, Trump lashed out at some of his staunchest allies in the administration for not using their power aggressively enough on his behalf, even calling out Barr for failing to arrest his political rivals, including Biden, and trying to push the secretary of state, Mike Pompeo, to make public Hillary Clinton’s more-than-four-year-old emails.

In 1939, in the face of widespread claims that Works Progress Administration employees were being pressured to work on Democratic Party campaigns, Congress passed a law known as the Hatch Act to prevent federal officials from exploiting their authority for partisan purposes. Most presidential administrations have since taken pains to separate their public and political operations, so as not to break the law. Civil violations of the act are handled by an independent agency known as the Office of Special Counsel. President Obama’s secretary of Housing and Urban Development, Julián Castro, was censured for discussing the 2016 election during a TV interview. He issued a public apology, explaining that the error was inadvertent.

Presidents and vice presidents are exempt from the statute’s civil provisions. Because they are effectively always on the job, some of the prohibitions — like the one against engaging in political activity while on duty — would be difficult to apply. Dozens of Trump administration employees, including at least nine high-level appointees, have been investigated for Hatch Act violations. Kellyanne Conway violated the act on more than 60 occasions, prompting the Office of Special Counsel to recommend that Trump remove her from her position as a senior White House official. (“Blah, blah, blah,” Conway said at the time. “Let me know when the jail sentence starts.”)

But the Hatch Act also has criminal provisions from which the president is not exempt; one is the prohibition against using one’s official authority to influence a federal election. “That’s the very heart of the Hatch Act,” Kathleen Clark, a professor of legal and government ethics at the law school at Washington University in St. Louis, told me. “Public power is for public good, not for private good.” Trump’s flagrant violations of this prohibition were widely noted at the time of the Republican convention. Neither Trump nor his senior staff seemed that worried about it. “No one outside the Beltway really cares,” his chief of staff, Mark Meadows, said.

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