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Column: The GOP wants to burn down the Justice Department

A man in shirt and tie stands with arms folded
Newly named Special Counsel Jack Smith is pictured in 2010, when he was chief of the Public Integrity Section of the Department of Justice.
(Charles Dharapak / Associated Press)

Call it DOJ derangement syndrome.

Almost as soon as Atty. Gen. Merrick Garland announced the appointment of a special counsel to provide independent, nonpartisan oversight of criminal investigations related to Donald Trump, Republicans started screaming.

The appointment in itself, they said, demonstrated the Department of Justice’s corruption and politicization. But be assured, if Garland hadn’t named a special counsel, they would have screamed bloody murder as well.

An “outrage,” harrumphed Trump, predictably. But more tellingly, the new Republican majority fell right in line.

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The GOP House Judiciary Committee faction, which will be charged with overseeing the Justice Department in the coming Congress, tweeted that “Jack Smith and his buddies have been politicizing Washington for AGES. And he’s who AG Garland picked to be the special counsel to ‘investigate’ President Trump? Come on.”

Jack Smith, the prosecutor named as special counsel to oversee investigations related to ex-President Trump, has a career confronting public corruption and war crimes.

Arkansas Republican Gov. Asa Hutchinson, a likely 2024 presidential candidate, opined that the special counsel appointment was “not good news” for the country.

Texas Sen. Ted Cruz said Trump’s just announced 2024 presidential candidacy — which for most observers is the “extraordinary circumstance” required for the appointment of a special prosecutor — made Garland’s action “problematic.”

MAGA banner-carrier Rep. Marjorie Taylor Greene, of Georgia, called for the House in the next Congress to cut off funding for the investigation.

All this before Special Counsel Jack Smith had a chance to do anything other than accept his new job.

The last few weeks have provided ample indication of a Republican Party ambivalent about Trump’s continuing influence and looking for ways to gingerly distance itself from his MAGA lunacy. But apparently nobody in the party doesn’t love giving the Justice Department a hard time.

Every move the department makes, and will make over the next two years, will be fodder for the hard-right talking point that a shady and dishonest DOJ has substituted for its basic law-enforcement mission an obsession with collecting Republican scalps. If Garland changes the carpet in his office, it will prompt a congressional investigation.

“Jack Smith and his buddies.” What does that even mean except an attack on the whole of the department?

Atty. Gen. Merrick Garland needn’t — and shouldn’t — hand off to a special counsel the criminal investigation of the former president.

Smith, a registered independent, is a career prosecutor who has honorably worked at the state, federal and international level. I wouldn’t be surprised if he has never been in the same room with Garland.

If Republicans will twist a low-profile. broadly respected nonpartisan voter like Smith into a political hack, whom would they not deform to fit their pre-selected narrative? Maybe only a prominent Republican, former Marine and FBI director, avatar of prosecutorial integrity such as Robert S. … er, never mind.

Friday’s pile-on reveals that the GOP is working from an already formulated script that neither facts nor the law can change. For the rest of Joe Biden’s first term, the most orthodox or routine Justice Department decision will be flogged as a political scandal, with no regard for the specific merits of the cases. It’s just who Republicans are now: transparently politicizing and hyperpartisan actors.

Their stance is not only deranged, it is fundamentally dishonest. These Republicans demonize Garland notwithstanding that any honest broker or Washington insider — including many of them — fully understands that Garland’s integrity, fair-mindedness and commitment to justice without fear or favor are beyond reproach, and that the investigations and potential prosecution of Trump is driven, indeed required, by a commitment to equal justice under law.

For that reason, former Atty. Gen. William Barr’s acknowledgement of the bona fides of a potential prosecution growing out of Trump’s Mar-a-Lago conduct did a solid for the department, going beyond personal score-settling. On Friday on PBS’ “Firing Line,” he said the Justice Department probably has a “basis for legitimately indicting” Trump over documents found at the former president’s Florida residence.

The investigation and prosecution of a U.S. president or a former president poses intrinsic challenges, but it’s something that a mature democracy has to be able to take on, a lesson that Watergate drove home nearly 50 years ago.

The Republican Party’s vaunted red wave turned into a ‘red wedding.’ And it’s their own fault.

Since then, we have tried different approaches — with at best checkered results — to reassure the public that even presidents and presidential candidates are not above the law and that the Department of Justice can investigate the mighty impartially.

But because any method of investigating the powerful must have a final decision maker, it is the flaws of those decision makers that have rocked public confidence in the Justice Department’s ability to undertake this most sensitive, but necessary, of tasks.

No means for holding officials to account can succeed if the public already has decided that the justice system is root-and-branch corrupt. If gleeful MAGA acolytes insist, for purely political reasons, on screaming from the rooftops that Garland is Torquemada, righteous investigations and potential prosecutions of Trump will never be wholly accepted nationally, no matter the facts and the law.

Whatever the political upshot of the demonization of the Justice Department, the social and democratic consequences will be dire. For too many people, deep societal wounds won’t heal. The narrowly ascendant, fire-breathing Republican Party is unconcerned — or, even worse, enthusiastic — about burning down an institution, and not just that.

Do they have a plan for what to do if they succeed in diminishing respect for the Justice Department and with it society’s confidence in the rule of law? Not likely.

@HarryLitman


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