IN PRAISE OF THE “DEEP STATE” JUSTICE DEPARTMENT

On Tuesday, President Trump started the new year off with a bang with a Twitter attack against the “Deep State” Justice Department. In attacking his own Justice Department, Trump was using code words (“deep state”) often used by right-wing conspiracy theorists to describe the permanent liberal cabal of government employees that is entrenched deep within the federal bureaucracy, which they believe are resisting Trump’s efforts to root them out and bend all of the federal agencies to his will.

Last week, Trump went so far as to assert during a New York Times interview that he had the “absolute right to do what I want to do with the Justice Department.” Sorry, Mr. Trump, you do not. That is not how the federal system works – at least not for the past 135 years.

The vast majority of FBI and other Justice Department employees are career law enforcement agents and attorneys who have been selected for their posts based upon merit, not on their party affiliation, connections or political ideology. Indeed, the U.S. Civil Service System dates back to 1883 and is designed to eliminate the ability of elected officials and political party operatives to decide who works for the federal government.

To be sure, the upper echelons of both the Justice Department and the FBI are White House political appointees, including FBI Director Christopher Wray, Attorney General Jeff Sessions, and Deputy Attorney General Rob Rosenstein. However, beneath this upper crust, all Justice Department employees are hired based solely on their abilities and their merit, working diligently at their jobs without political interference or fear of retribution.

However, this does not mean that Justice Department employees cannot hold political opinions, vote, or make contributions to political candidates. Indeed, as Deputy AG Rosenstein recently explained to a Congressional committee, the political opinions and party affiliation of candidates for Justice Department positions are not taken into account in the hiring process. To do so would be a violation of the law. Under the 1978 Civil Service Reform Act, the “selection and advancement” for federal positions is “determined solely on the basis of relative ability, knowledge, and skills.” Nor, as Rosenstein has pointed out, can the Justice Department fire an employee for expressing personal political views, which is protected by the First Amendment, although the FBI did recently reassign FBI agent Peter Strzok from the Special Counsel’s Trump/Russia investigation to other duties when text messages by him that were disparaging of Trump were made public. Even though there is no evidence that such personal views by Agent Strzok influenced his professional work, his reassignment was entirely proper in order to avoid the appearance of impropriety or bias.

Trump appears to be persisting in his efforts to quash the Justice Department’s investigation of his team’s dealings with the Russians, even though those efforts have backfired to date. First, he tried to cajole then-FBI Director Comey into dropping the investigation of former NSA Michael Flynn’s Russia contacts during the campaign and the transition period. When Comey balked, Trump simply fired him. This strategy, however, had the unintended consequence of triggering the appointment of Robert Mueller as Special Counsel and an intensification of the investigation.

Trump has also bitterly criticized Attorney General Jeff Sessions for having recused himself on the Russia investigation, but Sessions, to his credit, has more or less stuck by his guns and refused to be pressured into resigning.

Now Trump’s allies in the press and in Congress have intensified their efforts to discredit and undermine the FBI and the Special Counsel’s office in the eyes of the public.  One of Trump’s opening salvos attacked the FBI as supposedly being in “tatters” and therefore not worthy of public respect.  By vowing to restore the FBI to its former glory, or making it “greater than ever,” it seems likely that Trump is laying the groundwork for a possible firing of Mueller or, at the very least, indelibly tainting the Russia investigation as a partisan “witch hunt.” If he succeeds in this effort, then he will be inoculated, he hopes, from the fallout of any additional indictments or plea agreements with present and former members of the Trump team, which could then be dismissed as further evidence that the “deep state” is engaged in a slow-rolling “coup ” to oust Trump from the White House.

Trump’s campaign to undermine and dishearten the FBI appears to have been at least partially successful, since FBI Deputy Director Andrew McCabe, who has been one of the specific targets of the well-orchestrated assault on the FBI’s credibility, has announced that he will be retiring soon, even though he is only 49 years old. The FBI’s top lawyer, James Baker, was also abruptly reassigned last week.

If the Trump Administration and its allies continue on this course unopposed, they will have carried out their own “coup,” which will involve the politicization of the Justice Department for the first time in modern history, and the end of the Justice Department’s proud history of professionalism and political independence. The stakes could not be any higher.