Sham Investigation Is Another Nail In The Coffin Of DOJ Independence

So the sham of an investigation is over and on Saturday we will know if Trump and McConnell’s politics of dominance will once again be successful, installing a man supremely unfit to serve on the highest court in the land. And once again, the independence of the Department of Justice has been eroded as it slowly becomes an investigative and prosecutorial arm of Trump and the Republicans, another small step to autocracy.

Beyond the fact that this sham of investigation never talked to Dr. Ford or Kavanaugh or any of Deborah Ramirez’s multitude of witnesses, is the multiple reports that the FBI is refusing to take statements, either sworn affidavits or in-person interviews, with scores of other potential witnesses who have come forward. According to NBC News, “One current and two former FBI officials confirmed to NBC News that dozens of witnesses have come forward to FBI field offices who say they have information on Brett Kavanaugh, but agents have not been permitted to talk to many of them.” This is all being done under orders from the White House.

I understand that the White House controls the parameters of the background investigations it requests. But there is no good reason for the FBI not to take these witness statements, even if it is clear that they will never end up as part of the background information sent back to the White House. The only reason that the FBI is not taking these statements is to ensure that they have no record of them at all.

All this is part and parcel of the effort by Trump and Republicans to turn the DOJ into their own private investigative and prosecutorial force. Remarkably, there are many on the right who believe that Trump has the absolute constitutional right to do this. According to Alan Dershowitz, Trump has the authority “to tell the Justice Department who to investigate, who to prosecute, and who not to investigate, and who not to prosecute.” This is originalism run amok.

As Matthew Miller points out, the DOJ has already surrendered its independence to Trump and the GOP on multiple fronts. It has turned over the texts of FBI employees “allowing them to be smeared by the president and the conservative media while the FBI investigation into their conduct was ongoing.” It has taken the unprecedented step of releasing portions of the FISA application regarding the surveillance of Carter Page. On the President’s orders, it has opened an inspector general’s investigation into the origins of the original investigation into the Russian interference in the 2016 election. Just last week, the DOJ reopened the investigation into Hillary Clinton’s emails, again at the President’s urging.

Trump and the GOP have already been emboldened by the previous capitulation of the DOJ to their political demands. If this sham investigation, totally controlled by the White House, allows Kavanaugh to be confirmed on Saturday, Trump will only test the boundaries further. It is already in the cards that Jeff Sessions will be gone after the midterms and the Mueller investigation will be vastly constricted or killed entirely at the same time. With Kavanaugh’s views on the “unitary executive” being similar those espoused by Dershowitz and the Federalist Society crowd, Trump can pardon everyone of his cronies that Mueller has already indicted and convicted. And then he can begin the investigation of both Democratic and democratic opponents, including a purge in the DOJ/FBI itself, under the guise that China is attacking our elections by targeting Trump voters with its retaliatory tariffs.

We will see a Trump unleashed if the Democrats win the House, no matter what happens in the Senate. Trump knows that the Senate and the Supreme Court will keep him in power at least until 2020. With no legislative movement possible, his authoritarian tendencies will get even stronger and be unstoppable in the Senate and supported in the Court. This attack will extend across the broad range of his hatreds – immigrants legal and illegal, minorities, women, and, like Kavanaugh, anyone who has the temerity to stand up to him. We ain’t seen nothin’ yet.