“Witch Hunts” and the Rule of Law: Trump, The Special Counsel, and the DOJ

• In Event: Donald J. Trump and the Law

Abstract

Donald Trump is not the first president to try to undermine public confidence in a special prosecutor’s investigation of executive branch wrongdoing or to use his prerogatives to undo the prosecutor’s work. Indeed, he joins a list that already includes: Richard Nixon (Watergate), George H.W. Bush (Iran-Contra), and Bill Clinton (Whitewater/Monica Lewinsky).

This paper summarizes the previous behavior of presidents subjected to independent counsel investigations and compares President Trump’s behavior to theirs. It concludes that while Trump’s behavior is part of a larger pattern of presidential use of various executive prerogatives to try to counteract independent counsels, it departs from that pattern in several distinct ways. First, Trump began his assault on the credibility of Mueller and the investigation almost immediately. Second, Trump has taken the lead in these attacks through his tweets, rather than relying primarily on surrogates to question Mueller’s integrity and investigation. Finally, Trump has not just challenged the special counsel, but also the FBI and the Department of Justice itself, working aggressively to undermine his own appointments.

I conclude that two conditions in the broader political environment have contributed to these developments. The first is the highly fragmented media market that allows the president and his supporters to shape the “witch hunt” narrative for an audience already inclined to believe it. The second is Trump’s base voters whose conservative populist distrust of federal law enforcement was already well developed because of the Branch Davidian compound disaster in Waco, TX, the Ruby Ridge shootout between federal agents and survivalists, the Oklahoma City bombing, and more recent conflicts with federal authorities over land use.

Author

• Katy J. Harriger, Wake Forest University