Tearing Apart The Governing Consensus

Authored by Roger Kimball via American Greatness,

A victory for the administrative state in the war on Donald Trump won’t be a victory for the rule of law…

We hear a lot about the loss of “institutional legitimacy” these days. One of the great ironies attendant on that loss is a revolution in sentiment among many—but by no means all—people who think of themselves as conservative. Hitherto, such people would have been staunch supporters of those institutions that, traditionally, had represented the rule of law, the continuity of our culture, etc. Nowadays, they look with a jaundiced eye upon once-respected institutions like the Department of Justice, the FBI, the CIA, and the rest of the national security/surveillance apparat. 

How could it be otherwise? Recent revelations that scores if not hundreds of figures from that world had insinuated themselves into media, social and otherwise, to push a partisan agenda must give us pause. The stories are legion. Here’s one that just appeared in The Federalist by Margot Cleveland. 

The month before Joe Biden’s inauguration, FBI sources collaborated with the New York Times’ Russia-collusion hoaxer Adam Goldman to falsely portray the investigation into Hunter Biden as a big ole nothingburger. Americans just didn’t know it at the time. However, revisiting Goldman’s article now, in light of recent whistleblower revelations and statements by former Attorney General William Barr, reveals this reality—and more.

That’s bad, right? The FBI fed faked news to our former “newspaper of record” about a partisan matter that might well have determined the outcome of a presidential election. And the response? A little feckless hand-wringing on the Right. Some clucking tongues. At the end of the day, though, expect crickets. 

In one of the very best pieces I have seen about the Horrors!-Trump-had-classified-documents-at-Mar-a-Lago indictment, also published at The Federalist, former Assistant U.S. Attorney Will Scharf minutes several disturbing features of that 37-count farce. Much of what he has to say is broadly exculpatory of Trump, but one of the most disturbing items concerns the 38th item in Special Counsel Jack Smith’s partisan cudgel: the indictment of Trump’s aide Walt Nauta. 

Why was Nauta indicted? Smith alleges he was guilty of “conspiracy to obstruct justice.” What he is being punished for, however, is refusing to betray his employer, Donald Trump. “Just turn state’s evidence on the bad orange man and we’ll let you go.” That, more or less, is what the Feds said.

They came down heavy on Nauta’s lawyer, Stanley Woodward, too. As Scharf explains, Woodward alleged in a court filing that 

during a meeting with prosecutors about his client’s case, the head of the Counterintelligence Section of DOJ’s National Security Division Jay Bratt ‘suggested Woodward’s judicial application [for a DC Superior Court judgeship] might be considered more favorably if he and his client cooperated against Trump.’

Got that? It might have been an out-take from “The Godfather.” But no, it is business as usual in the Department of Justice circa 2023. Of course, we do not yet know that the allegation is true. If it is, Scharf’s description of it as “truly wild misconduct” is an understatement. I think it is very likely true. 

As Scharf notes, “Woodward is a highly accomplished lawyer. He spent a decade at Akin Gump, a top law firm, clerked on the D.C. Circuit, and has very substantial experience in government investigations. This is not some fly-by-night TV lawyer. He is a legal heavyweight, and he is leveling an extremely serious allegation of misconduct against a senior official at DOJ.”

Let’s say his accusation turns out to be true. What then? If past performance is any guide, the erring prosecutor might or might not get a slap on the wrist and the whole thing will be buried. Maybe he will go on to a lucrative TV posting, à la Andrew McCabe or Peter Strzok. Maybe he’ll be shuffled to another department. Don’t expect any real consequences. 

Such cases, and they are legion, bring me back to that irony I mentioned at the outset of this column. The world seems increasingly divided between those who continue to have confidence in our institutions and those who, finding them bankrupt, have withdrawn their support.

This dividing line shows up in many different ways. One prominent fissure shows itself in the commentary on Jack Smith’s indictment. On one side, there are commentators—including such eminences as former Attorney General William Barr—who tell us that Trump’s holding on to those documents at Mar-a-Lago was heinous. On the other side are those (like me) who think it was no big deal. 

There has been a lot of talk about how he had “the nation’s most sensitive secrets” strewn about a closet or lining a bathroom. But nothing I’ve seen—certainly nothing in Smith’s indictment—rings any alarm bells to me. Joe Biden had hundreds of boxes of classified documents strewn about his garage and elsewhere in his house. He took those documents when he was a senator or vice president. Before, that is, he was president with the plenary power to declassify anything he wished and take home or on holiday anything he wished. 

There has been a lot of talk about how the United States is more and more subject to a “two-tier” system of justice, which is to say a system of injustice. It pains me to acknowledge it, but it is true. Henry VIII had his Star Chamber, a similarly unjust form of meting out justice. Through it he got rid of the people who stood in his way or did not do what he wanted them to. 

The functionaries and factota of the administrative state are busy trying to do to Donald Trump what Henry did to his enemies. They might just be able to peck him to death, or to jail. It won’t be a victory for the rule of law. But it will surely increase the rancor and divisions that are tearing apart the governing consensus that once ruled in this country.