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Is Trump's war on the DOJ obstruction? Here's what you need to know

Is it political? Yes. Is it legal? Probably.

by Taylor Dolven and Alex Thompson
May 23 2018, 7:03pm

Until now, President Trump’s attempts to undermine the probe led by special counsel Robert Mueller had stuck to words — mostly tweets — attacking the probe and Mueller himself. That changed this week when Trump demanded via Twitter that the Department of Justice investigate whether the FBI used an informant to spy in the Trump campaign for political purposes.

Deputy Attorney General Rod Rosenstein immediately appeared to comply, asking the department’s inspector general, Matthew Horowitz, to expand an ongoing probe into whether the DOJ relied too heavily on the unverified Steele dossier for obtaining wiretap warrants. “If anyone did infiltrate or surveil participants in a presidential campaign for inappropriate purposes, we need to know about it and take appropriate action,” Rosenstein said.

While legal scholars debate whether the president should be ordering the DOJ to do things, and if the act itself constituted obstruction of justice, it’s clear that we’re in uncharted legal territory. Here’s what we know:

Is it legal?

While Trump’s behavior toward the Justice Department breaks established norms, it probably isn’t breaking the law. Constitutional lawyers are divided about whether the president demanding an investigation like this is proper, but most say they think it is legal. A court has never ruled on this exact question, muddying the matter further.

“It mainly is a 'should' question, and the answer is you should not,” Susan Low Bloch, a professor at Georgetown Law School and the author of Inside the Supreme Court, told VICE News. “Yes, he is the head of the executive branch and the Justice Department is in the executive branch, but we have developed an expectation and culture of keeping politics out of the Justice Department — and that’s a good thing.”

Some in the legal community are less fazed by the president’s actions. “There’s nothing improper about the president directing the Department of Justice to investigate a matter that he believes merits investigation,” said Philip Bobbitt, director for the Center for National Security at Columbia Law School. Bobbit cited the president’s role as the country’s chief law enforcement officer.

Watch: Here’s how much Americans bitterly disagree about the Mueller probe

Just because it’s probably legal doesn't mean it’s not troubling for legal experts. The Constitution says that the president “shall take care that the laws be faithfully executed.” But Trump is not asking for an investigation into the FBI’s use of informants broadly; he’s asking for an investigation into how one alleged informant interacted with his campaign.

“The extent to which it appears the president is interfering with a fair and impartial administration of criminal justice in this country is concerning,” said Deborah Pearlstein, a law professor and constitutional law expert at Cardozo Law. “He’s not worried about broad abuse; he’s worried about it only to the extent that it affects him.”

“What makes it inappropriate is the demand”

Other legal experts go as far as to call the move illegal. New York Law professor Rebecca Roiphe said if Trump had asked Rosenstein about the matter privately, it would have been proper, but the demand is what makes it cross the line into illegal territory.

“When Congress hasn’t acted, you have to decide what the state of the law is, you look to the norms,” Roiphe said. “The president should meet with the attorney general, articulate his concerns to the attorney general and ask that the attorney general consider opening an investigation. What makes it inappropriate is the demand.”

Who is investigating the investigators?

DOJ Inspector General Michael Horowitz was already reviewing whether the FBI unlawfully relied on information in the Steele dossier — a memo with dirt on the president compiled by former British spy Christopher Steele and paid for by Democrats — in 2016 when requesting permission for a surveillance court to continue monitoring Carter Page, a Trump campaign adviser at the time. That probe began in March.

Now, at Trump’s request, Horowitz is tacking on this question: Did the FBI unlawfully spy on the Trump campaign for political purposes?

President Barack Obama appointed Horowitz in 2011, and he has served as inspector general since 2012. Most recently Horowitz reviewed former Deputy FBI Director Andrew McCabe’s conduct before the election when he leaked information about his decision to investigate the Clinton Foundation and found McCabe was acting out of personal interest, against department policy. Attorney General Jeff Sessions said the findings on McCabe’s conduct were the reason he fired McCabe in March.

The inspector general does not have the power to prosecute cases. By handing this investigation off to Horowitz, Rosenstein is protecting the integrity of the Justice Department while giving Trump what he wants.

“He’s giving the president whatever he can give him in order to pacify him while not violating his obligation,” Roiphe said. “He’s making sure prosecutorial decisions are being made by people trained to make those decisions.”

How long will it take?

Government investigations take months or years, and this one will be no exception.

Former U.S. Attorney Brett Tolman said the inspector general’s office is the right place for an investigation like this, but he warned we might not know what he finds for a very long time.

Read: Mueller may not indict Trump, but the president still isn’t above the law

“If they truly find something that was done that may be criminal, the inspector general has the ability to recommend that either a U.S. attorney or someone in the criminal division actually take the matter and look at it for purposes of bringing a criminal case,” Tolman said. “It could be months before you have any indication about what it is. It’s going to be months if not longer.”

Is this obstruction?

Mueller is investigating whether Trump has obstructed justice throughout the Russia investigation. Trump’s move to demand a counter investigation could be of interest to Mueller in that inquiry, depending on Trump’s motive.

“When he fired Comey, I thought, 'Oh my god' — that on its face looked so bad”

Is Trump genuinely concerned about criminal wrongdoing, or is he trying to divert attention away from Mueller’s investigation of him? If he's genuinely concerned that the FBI unlawfully spied on his campaign, why limit the investigation to just this one case? Because there seems to be enough evidence to provoke a genuine concern, this likely falls very low on Mueller’s list of events that might count as obstruction.

“When he fired Comey, I thought, 'Oh, my god' — that on its face looked so bad,” said Pearlstein of Trump’s decision to fire former FBI Director James Comey in May of 2017. “Getting the inspector general to look at this isn’t quite as much of a smoking gun.”

Has this ever happened before?

The separation between the White House and the country’s judicial system has ebbed and flowed throughout history. George Washington ordered the prosecution of those involved in the Whiskey Rebellion. But Richard Nixon’s interference during the course of the Watergate investigation led the Justice Department to establish a new set of rules governing the executive branch relationship.

"The partisan activities of some attorneys general ... combined with the unfortunate legacy of Watergate, have given rise to the understandable public concern that some decisions at Justice may be the products of favor, or pressure, or politics," Attorney General Griffin Bell said in a 1978 address to Justice Department lawyers.

Bell established a series of rules that set up barriers to White House input, often to the frustration of President Jimmy Carter’s administration. "You elect a president because of a certain philosophy, and you expect that philosophy to be carried out," one upper-level White House aide told the Washington Post in 1979, expressing frustration with Bell. “The White House should have a role in determining what briefs the solicitor general files, what civil rights cases are brought, what civil cases are defended.”

President George W. Bush’s administration relaxed some of those rules and allowed the White House to be in more contact with the Justice Department. Bush fired seven U.S. Attorneys and his attorney general, breaking with post-Watergate traditions.

What about the politics?

As a political strategy, the war against Mueller and the DOJ appears to be working. Trump’s base has clearly filed this under the larger “deep state” and “witch hunt” conspiracy against the president that Trump has been claiming since before he won the election.

Fewer and fewer Republicans believe the Mueller investigation should continue — only 18 percent in April, down from 26 percent in March, according to a poll by Monmouth University. And the president’s overall approval rating has broken above 40 percent, about where it was soon after he was elected in 2016.

"He needs to let the investigation against him proceed without any political interference," Democratic Rep. Ted Lieu of California said on CNN.

But for Trump, the political ramifications of the investigation are more important than the legal ones. Decades of Justice Department policy indicate that the president is immune from criminal prosecution while he or she is in office, meaning any punishment for Trump at the end of this will likely come from Congress. And the more people in Trump’s base who believe the investigation is an illegitimate attack on their guy, the more likely Trump is to survive that.

On Thursday, Justice Department officials will meet with House Republicans Devin Nunes of California and Trey Gowdy of South Carolina, who've been echoing claims of DOJ corruption for months, to discuss classified information about the FBI’s alleged use of an informant. Other Republican and Democratic lawmakers are calling the meeting improper and demanding they be allowed to attend.

Cover image: President Donald Trump talks to journalists before departing the White House May 23, 2018 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)

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