Whenever the White House announces a new criminal investigation into one of Donald Trump’s enemies—an event that occurs with Stalinesque frequency—the administration and its allies have a go-to line: “No one is above the law.” FBI Director Kash Patel, Federal Housing Finance Agency Director Bill Pulte, and others have gleefully deployed the tagline. It’s a smirking, knowing stand-in for the claim that Joe Biden did the same thing to Trump while insisting that Trump was not above the law, and so turnabout is merely fair play.
As defenses of the naked politicization of federal law enforcement go, this rejoinder is not terribly convincing. But it is essentially the only defense that can be found for Trump’s campaign to turn the law into a shield for his allies and a weapon against critics and dissenters.
The first problem with this argument is that the Biden administration did not politicize law enforcement—in fact, it went out of its way to avoid doing so. Biden put the Justice Department in the hands of Merrick Garland, a widely respected figure who had bipartisan support and who pledged to operate independently, and who followed through on that pledge by appointing a special counsel to insulate the federal Trump investigations from political influence. Trump nominated Pam Bondi, a crony with almost no Democratic support and who doesn’t even pretend to value the department’s independence. “We are so proud to work at the directive of Donald Trump,” she declared in March. (Trump nominated Bondi only after his first crony with no Democratic support, Matt Gaetz, proved too noxious even for some Republican senators.) Biden kept in place an FBI director chosen by Trump; Trump then replaced him with a cartoonish loyalist.
Conservatives have an answer for this, of course. Biden, they say, maintained the appearance of prosecutorial independence while secretly manipulating the Justice Department. The only difference is that Trump isn’t hiding it. “He’s cast aside any pretense that the Justice Department is independent (and Mr. Biden had turned this into a pretense) and is openly issuing directives for investigations,” the Wall Street Journal columnist Kimberley Strassel argues.
[Quinta Jurecic: Trump’s revenge campaign has a weakness]
This defense makes sense if you believe, as Strassel writes of the Biden administration, that “almost all their efforts aimed at politically hamstringing one man: Mr. Trump.” If, however, you were sentient during the Biden years, you will recall that Biden’s DOJ went after a long list of Democrats, such as Senator Bob Menendez of New Jersey, New York City Mayor Eric Adams, Representative Henry Cuellar of Texas, and Representative T. J. Cox of California. Most inconveniently for Trump’s defenders, the Biden DOJ even prosecuted Hunter Biden. What’s more, the department appointed an independent prosecutor, Robert Hur, to look into Joe Biden’s retention of classified documents during his time out of office. Hur produced a devastating report describing Biden as elderly and suffering from memory loss. Merely trying to imagine Trump’s Justice Department investigating a Trump ally, let alone, say, Don Jr., gives a sense of how wildly the two administrations differ.
The second flaw in the turnabout defense is that it pretends the cycle began under Biden. “It was Democrats who introduced the noxious art of lawfare, though master retaliator, Donald Trump, is perfecting its use,” Strassel claims.
Wait—Democrats introduced the idea that presidents should lock up their opponents? In fact, this concept was totally absent from the American political debate until Trump introduced it as a major campaign theme in 2016. His conceit was that Hillary Clinton should be locked up for using a private email server. Here again, this theme was available only because Clinton was being investigated by the FBI under a Democratic administration—under the very administration in which she had served as secretary of state—demonstrating levels of independence that would be unimaginable today.
Trump is leaning much harder into political prosecutions during his second term than he did during his first, a fact that some conservatives point to as evidence that Democrats are merely reaping what they sowed. “The barrage of prosecutions of Trump while he was out of power probably made his second presidency more willful and vindictive,” the Washington Post columnist Jason Willick argues.
In truth, Trump tried repeatedly during his first term to get the Justice Department to investigate his enemies and go easy on his friends. He had limited success not because Biden had yet to invent lawfare but because the department was still run by figures who believed in a degree of prosecutorial independence and the rule of law. What held Trump back from abusing his power in the first term was a lack of willing partners, not some spirit of restraint or generosity.
The payback theory has one more, very large, flaw. It’s that Trump is, in fact, a huge and notorious crook. Conservatives have sought to elide this inconvenient data point by focusing on Manhattan District Attorney Alvin Bragg’s strained effort to prosecute Trump for campaign-finance violations. Bragg’s charges were technically correct but represent the kind of case you would bring only if you were looking to find a crime—a point that many liberals conceded at the time.
However, just because you’re the victim of prosecutorial overreach doesn’t make you innocent. The other cases against Trump were much more solid. He took a load of classified government documents, stored them in ludicrously insecure facilities, lied to government officials about their whereabouts, and repeatedly ignored demands to return them. There was also the small matter of his attempt to stay in office after losing reelection.
[Paul Rosenzweig: The destruction of the Department of Justice]
This behavior came after a career spent treating laws as suggestions. Trump’s public life began with his defiance of Justice Department orders to allow Black tenants into his father’s apartment buildings, and proceeded through a series of deals that ranged from sketchy to outright scams, such as “Trump University.” Trump was open about dealing with mobsters, and other Republicans described him, accurately, as a con man.
The Occam’s-razor account of how it is that Trump became the first ex-president to face criminal investigation is that Trump is the first professional crook to be elected president. This would also neatly explain why he invented the idea of locking up the president’s enemies. Crooks are generally cynics who think that everybody in power is a criminal, and the only difference is that some people are hypocrites about it. (“My father’s no different than any other powerful man,” Michael Corleone says in The Godfather.)
Barack Obama did not threaten to lock up John McCain or Mitt Romney. The idea that the law is a weapon the president uses to protect his friends and harass his enemies was brought into American politics by one man. He now happens to be the one man who is very definitively above the law.
