February 11, 2020

As predicted, yesterday’s calm was short-lived. There were three major news items today but, put together, they added up to a surprisingly coherent narrative.

The first story was that one that has taken the media by storm: the Department of Justice, under Attorney General William Barr, today stepped into the sentencing of Trump advisor Roger Stone to reverse the recommendation the department had made yesterday.

In November, a jury convicted Stone of seven counts of obstructing and lying to Congress and tampering with witnesses concerning his role connecting the Trump campaign with Wikileaks in 2016. Career prosecutors in the Justice Department yesterday followed federal guidelines to recommend that the judge sentence him to between 7 and 9 years in prison. After they made this recommendation, Trump tweeted that the recommendations for the sentencing of his friend were “very unfair,” a “miscarriage of justice,” and a “ridiculous 9 year sentence recommendation.” Today, the department submitted a revision to its recommendation, telling the judge the previous recommendation was “excessive and unwarranted.”

It appears the Justice Department attorneys on this case learned about the revision by hearing it on the Fox News Channel. As soon as they heard, four of them—Aaron Zelinsky, Adam Jed, and Michael Marando-- filed paperwork to be removed from the case, and one, Jonathan Kravis, resigned his position as an assistant U.S. Attorney in Washington, D.C., going back to his home base as an assistant U.S. attorney in Baltimore.

It is hard to overstate the significance of this event.

The Department of Justice is supposed to defend the rule of law in America. It is not supposed to be swayed by political pressure, and traditionally, communicates with the White House only very generally, and never about specific cases. It is emphatically not the role of the Justice Department to work with the president, but rather its job is to guarantee equality before the law for everyone in America. The Attorney General is the lawyer for the American people, theoretically, while the White House Counsel is the lawyer for the office of the president. In addition, the president can have his or her own personal lawyers. But the idea that the Attorney General is working for the president undermines the whole idea of the impartial justice on which our body of laws rests.

I can’t resist noting here that, while the Constitution established an office of the Attorney General, President Ulysses S. Grant signed the bill creating the Department of Justice in 1870 to try to preserve the rights of African Americans in the South after the Civil War. The department’s first assignment was to stop the Ku Klux Klan in the South, and it did, indicting more than 3000 people and winning more than 600 convictions as it tried to reestablish the rule of law in the former Confederacy. That history reflects that the role of the Department of Justice is really about upholding the rule of law, not about doing any particular president’s bidding.

Even while this is going on, pundits noted that the judge, Amy Berman Jackson, whom Stone attacked online, apparently to try to get her to withdraw from the case, and then apologized when she didn’t, was unlikely to be moved by the revision. Tonight, though, Trump tweeted “Is this the Judge that put Paul Manafort in SOLITARY CONFINEMENT, something that not even mobster Al Capone had to endure? How did she treat Crooked Hillary Clinton? Just asking!” (Jackson did not put Manafort in solitary confinement.) Hillary Clinton retorted: “Do you realize intimidating judges is the behavior of failed-state fascists? Just asking!”

Meanwhile, Speaker of the House Nancy Pelosi tweeted that Trump had “engaged in political interference in the sentencing of Roger Stone. It is outrageous that DOJ has deeply damaged the rule of law by withdrawing its recommendation. Stepping down of prosecutors should be commended & actions of DOJ should be investigated.” Trump instantly responded “Who are the four prosecutors (Mueller people?) who cut and ran after being exposed for recommending a ridiculous 9 year prison sentence to a man that got caught up in an investigation that was illegal, the Mueller Scam and shouldn’t ever even have started? 13 Angry Democrats?”

(As an aside, can I just say I long, with every fiber of my being, for the days when profound political fights were not conducted by tweet?)

Pundits agree that this is a uniquely terrifying moment. But for all tonight’s outrage, it is not clear that Trump holds all the cards. As former US Attorney for the Southern District of New York Preet Bharara noted, the judge could insist on hearing from the withdrawing prosecutors before she lets them quit. We will know more tomorrow.

The second major story—although it is not being treated as such—is that the Trump administration has withdrawn the nomination of Elaine McCusker for the position of Pentagon Comptroller and Chief Financial Officer. Her confirmation hearing was scheduled for Thursday. Recently released emails show that McCusker pushed back on Trump’s order to withhold money from Ukraine and warned officials that they were likely breaking the law. While the White House is suggesting they are withdrawing the nomination because McCusker is not sufficiently loyal to Trump, the timing makes it likely that they do not want her in a confirmation hearing before the Senate, where she can be asked about the Ukraine Scandal.

And the third major story is the New Hampshire primaries. Before I talk about them, let me note that I am approaching them as a historian looking for patterns, rather than as a modern-day partisan, and I cannot tell you how much I don’t want to be swarmed with supporters of one candidate or another screaming at me that I’m wrong. Yes. I could be wrong. And no, I am neither thrilled by what I see, nor endorsing any candidate. But I will note what I see nonetheless in the hope it will be of interest to some of you. Dismiss it at will.

What has grabbed headlines tonight is that Vermont Senator Bernie Sanders, an Independent, has won the New Hampshire Democratic primary. But if you dig a little deeper, the New Hampshire primary showed something very interesting. Progressive candidates Bernie Sanders and Elizabeth Warren won 35% of the vote in New Hampshire, while the moderates—Pete Buttigieg, Amy Klobuchar, and Joe Biden-- won 53% of the vote. Now, for all the fact that we pay such deep attention to Iowa and New Hampshire, those states are emphatically not representative of either Democratic voters or of the United States at large. But it is not inappropriate to see groupings at this point, and to note that Democratic votes seem to be resting on candidates perceived to be moderate rather than those perceived to be more progressive. Super Tuesday, March 3 this year, when 14 states vote for presidential candidates, will tell us more about the preferred Democrat, not least because former New York City mayor Mike Bloomberg has saved his firepower for that contest.

But my guess is that the headlines trumpeting Sanders at this point are missing the larger story that today revealed so clearly. Americans are just sick of Trump, sick of his attempts to undermine the rule of law, and eager simply for a return to a stable government that does not produce constant drama. That the White House is so eager to keep McCusker from testifying before the Senate that they are withdrawing her nomination suggests that the drama is not yet over, and will not be over, for a long time.

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Notes:

Stone case: https://thehill.com/homenews/administration/482693-pelosi-calls-for-investigation-into-roger-stone-sentencing

https://www.nytimes.com/2020/02/11/us/politics/roger-stone-sentencing.html

https://www.washingtonpost.com/opinions/2020/02/11/justice-departments-reputation-is-life-support/

Jackson and Stone: https://www.theatlantic.com/ideas/archive/2019/02/roger-stones-online-attack-judge-amy-berman-jackson/583048/

McCusker: https://lawandcrime.com/high-profile/trump-to-pull-nomination-of-pentagon-official-who-raised-concerns-about-ukraine-aid-hold-report/

Bharara:

Democratic vote totals:

Super Tuesday: https://www.axios.com/2020-democrat-election-bloomberg-super-tuesday-ad-spending-ee703af0-1c15-495e-9e88-d48c59b5f70b.html