A Brief Observation on the Self-Serving Use of Institutions

The U.S. Department of Justice, a while ago.

I’ve already sketched out some insta-reactions to the Barr Letter’s summary of the Mueller Report at Politico and Commentary. But let me add one further thought, briefly, on President Trump, his opponents, and the proper understanding of institutions.

In Commentary yesterday, I highlighted the fact that Mueller’s endgame suddenly reverses the general direction of arguments surrounding the Justice Department’s institutional values. Throughout the Mueller investigation, the President’s critics preemptively criticized any effort by the President or his appointees to undermine Justice Department norms and rules in order to advance the President’s political fortunes. But now that the Mueller investigation has ended without the producing what so many of Trump’s opponents expected or desired (as Ross Douthat outlines this morning), we are quickly seeing the tables turn: now the President’s critics demand that Mueller testify before Congress and that his investigation be made public, despite the rules and norms that deter or ever prohibit prosecutors and investigators from commenting on uncharged conduct.

In other words, the President’s critics want the investigations into President Trump to benefit from all of the power and institutional legitimacy enjoyed by Justice Department investigations, without accepting the burdens, responsibilities, and restraints that inhere in Justice Department investigations.

They demand the benefits without accepting the burdens, even though the burdens are what have made the benefits possible (and which make the benefits possible in the long run). The very reason why our constitutional republic allows such immense powers to be wielded by the Justice Department, with some measure of institutional independence from our elected leaders, is precisely that those powers are restrained by the rules and norms that impose the burdens, responsibilities, and restraints on the use of those powers.

When the President’s critics try to claim the benefit of institutions without accepting their burdens, they resemble the President himself. As I observed in another Commentary post not long ago, the President’s invocation of statutory emergency powers is another stark example of the self-serving use (perhaps even “weaponization”) of institutional legitimacy: the President loudly rejects the conventions of the presidency, yet in declaring a border “emergency” he now attempts to assert and leverage the traditional forms of deference that the judicial and legislative branches have afforded presidents. What Trump wants to do with emergency powers, Trump’s critics want to do with prosecutorial powers. (Needless to say, this mirroring is not a new phenomenon, as Jack Goldsmith has pointed out in The Atlantic and Lawfare.)

This problem is hardly limited to Trump and his opponents, or to the issues of the Mueller investigation or the border “emergency” declaration. Rather it’s the perilous situation in which we see so much of today’s political and civic life, as Yuval Levin has been pointing out in recent years, in his writings and talks on American institutions. My own primary field, administrative law, is no exception—to say the least.

On the bright side, “hypocrisy is a tribute that vice pays to virtue.” Perhaps the blatantly self-serving use of institutions by President Trump and his most vociferous opponents, on the national stage regarding the most controversial issues of our day, will serve as ironic reminders of what institutionalism really entails. That’s the hope, anyway.

I’m a resident scholar at AEI, and a law professor at George Mason University, directing the law school’s Gray Center for the Study of the Administrative State.

I’m a resident scholar at AEI, and a law professor at George Mason University, directing the law school’s Gray Center for the Study of the Administrative State.