Donald Trump has repeatedly claimed that the Justice Department is targeting him because he is President Biden’s rival and that therefore he can do the same thing to Biden should he gain power. On Christmas Eve, with very little notice, Trump laid out in the most extensive detail to date the list of “crimes” he intends to charge Joe Biden with should he win the presidency:
REMEMBER, if I don’t have Presidential Immunity, then Crooked Joe Biden doesn’t have it either, and he would certainly be Prosecuted for his many ACTUAL CRIMES, including illegally receiving massive amounts of money from foreign countries, including China, Ukraine, and Russia, paying off Ukraine to fire an unfriendly prosecutor, allowing millions of people to illegally Enter and Destroy our Country, SURRENDERING in Afghanistan, with Hundreds Dead, many Americans Left Behind, and handing over Billions of Dollars Worth of the Best Military Equipment anywhere on Earth, the Decimation of American Wealth through the Green New Scam, and so much more.
The list begins with a series of debunked or unproved allegations numerous Republicans have made against Biden. There is no evidence that the president received money from China, Ukraine, or Russia, and even if the claims were proved, such payments would be sleazy but not criminal. Biden’s support for firing an ineffective Ukrainian prosecutor was consistent with the position of the Obama administration, democracy activists, and international organizations fighting corruption and was in no way whatsoever criminal. The Fox News cinematic universe has tried to present these as scandals, but there is not a wisp of evidence of illegality.
Trump’s list proceeds to actions that are unconnected to criminal allegations even in the Fox News fever swamp: Biden’s border policy, his withdrawal from Afghanistan, and his support for clean energy. There isn’t even a pretense of scandal attached to these charges. Trump is simply claiming the Democratic Party’s domestic and foreign-policy agendas are per se criminal.
Does Trump really plan to go through with this? There’s not much doubt he intends to try. He has said as much in public. “This is third-world-country stuff, ‘arrest your opponent,’” Trump said at a rally last fall, “and that means I can do that too.”
The Washington Post reported a couple of months ago that “Trump has told advisers and friends in recent months that he wants the Justice Department to investigate onetime officials and allies who have become critical of his time in office, including his former chief of staff, John F. Kelly, and former attorney general William P. Barr, as well as his ex-attorney Ty Cobb and former Joint Chiefs of Staff chairman Gen. Mark A. Milley, according to people who have talked to him,” adding that Trump also wants to prosecute officials at the Justice Department and FBI whom he deems insufficiently loyal.
During Trump’s term in office, he appointed a special counsel, John Durham, to prosecute the imagined “Spygate” conspiracy. Durham’s effort floundered, resulting in two acquittals of his targets. But merely harassing targets with prosecution is itself an intimidating weapon.
The Biden administration’s response to Trump’s flagrant abuses of power has been to restore the post-Watergate reforms. Instituted in response to the revelation that Richard Nixon had corrupted the Justice Department, the reforms created systems to insulate the department from presidential interference.
Conservatives have not only refused to credit Biden for restoring these norms but insisted without any evidence whatsoever that he is actually directing the Justice Department’s agenda. (They have ignored the department’s indictment of Biden’s beloved surviving son, Hunter, with charges that could bring up to 17 years in prison.)
There is an intellectual rationale for this stance. The theory conservatives have embraced is that the Justice Department shouldn’t try to wall itself off from politics. “In fact, as we saw during the Trump administration, it is actively dangerous to have the prosecution power lodged in someone unaccountable to the public,” argues National Review’s Dan McLaughlin. Biden deserves no credit for restoring post-Watergate norms, by this reasoning, because the norms shouldn’t exist.
But if we take this argument seriously, it has implications the right wouldn’t enjoy. There’s no way to survive a system in which presidents wantonly use the Justice Department to harass their political critics while allowing their allies to get off scot-free. One way to avoid that authoritarian nightmare is to create firewalls within the Justice Department. The other way, the one conservatives like McLaughlin are gesturing toward, is to create that firewall through political accountability.
What does political accountability mean? It means assuming the Justice Department will be controlled by the president and refusing to elect a president who will abuse that power.
Trump is literally making public promises to abuse that power. He devoted his entire term to battering down the firewall between himself and the attorney general’s prosecutorial power. The walls were barely holding by the time he left office. In a second term, they would be gone. McLaughlin’s clever attempt to deny Biden the credit for staying out of Merrick Garland’s face simply circles back to the conclusion the semi-loyal right wishes desperately to avoid: The only way to save the Republic from authoritarian abuse is to support Trump’s opponent.
