Another Move in Donald Trump’s Politics of Law Enforcement
His process for presidential direction of criminal investigations
Executive Functions is hiring an executive editor. See this post for details. And please click here to opt in to receive via email our Roundup—brief daily summaries of news developments and commentary related to executive power.
On April 24, President Trump issued a memorandum entitled “Investigation into Unlawful ‘Straw Donor’ and Foreign Contributions in American Elections.” It directs an investigation of foreign national and other illegal use of online fundraising platforms. The memorandum asserts that “malign actors” and foreign nationals are seeking to use ActBlue, the most prominent Democratic fundraising platform, and other platforms to “launder excessive and prohibited contributions to political candidates and committees” and orders the attorney general to investigate and report back to the president within 180 days.
After the issuance of the memorandum, the press correctly identified ActBlue as its specific target. ActBlue has provided a portal through which donors may make contributions to Democratic candidates and progressive causes of their choice. The platform claims that, in the last 20 years, it has facilitated more than $16 billion in these contributions. It has been described as a Democratic “fundraising powerhouse,” and the serious threat it now faces to its operations from this Trump-ordered investigation has been seen as “potentially hindering Democrats’ ability to compete in elections.”
Here was another episode in the series of this administration’s challenge to norms that constrain presidential abuse of power. Trump was directing the attorney general to initiate an investigation in disregard of any notion of DOJ “independence” in criminal law enforcement. At the same time, he was also ordering up an inquiry into a key source of fundraising for the opposition party, exercising this power to his own party’s evident political advantage.
This is more than the “latest sign of eroding guardrails” in insulating the department from political control. It is the wholesale rejection of those guardrails and an ongoing effort to replace them with a fully considered process by which a president may direct, as he has in this instance, a criminal investigation for political purposes. Fully appreciating the significance of this process requires close attention to the structure of the ActBlue directive and its implications. And it is important that this evaluation be divorced, in this or any case, from the question of the merits of any allegations. The sole concern here is what this kind of process, directed by the president in the manner described below, means for political abuse of federal criminal law enforcement.
The Order
The order itself does not call for an investigation of ActBlue. It almost seems from its wording that ActBlue has been the victim, “used” by malign actors and foreign nationals to funnel illegal contributions from foreign sources to candidates. The memorandum even appears to credit ActBlue with having “detected” fraudulent activity on its platform. In the memorandum’s reference to “extremely troubling evidence” of “willing” online platform complicity, the memorandum does not specifically name Act Blue, but instead “online fundraising platforms” more generally. Unlike the executive actions targeting law firms who are named specifically in the title, this memorandum mandates investigation of “Unlawful ‘Straw Donor’ and Foreign Contributions in American Elections.”
But along with the memorandum, the White House released a “fact sheet,” and it is this document that singles out ActBlue, targeting it for political prosecution. The fact sheet describes ActBlue as “notorious for its lax standards that enable unverified and fraudulent donations,” alleges that a House investigation “revealed that ActBlue trained employees to ‘look for reasons to accept contributions,’ even in the face of suspicious activity,” and cites investigations by “[n]umerous state attorneys general … into ActBlue over suspicious donations.” The full intent and effect of the memorandum can be assessed only by reading it in conjunction with the “fact sheet.”
The combined use of the memorandum and the fact sheet may be intended to make the case against ActBlue while supplying the administration with a fig leaf of a defense against the charge of political targeting: By the terms of the memorandum itself, the White House might claim that the president has not directed the investigation of this particular party. The memorandum—the precise executive action—calls attention to a more generally described category of offenses that require investigation. The “fact sheet” then just provides background for press and public consumption. It is a distinction without much of a difference. But some lawyer somewhere, in the Department of Justice or in the office of the White House Counsel (see below), may have concluded that it was a way around the problem of a directive to the attorney general specifically targeting ActBlue.
A maneuver like this appears to have shaped the titling of the two documents. The directive’s title is “Investigation into Unlawful ‘Straw Donor’ and Foreign Contributions in American Elections” and directs the attorney general to take charge of the investigation. But the fact sheet title identifies a different person in charge of the inquiry: “President Donald J. Trump Investigates Unlawful ‘Straw Donor’ and Foreign Contributions in American Elections.” The memorandum purportedly assigns responsibility for the investigation where it would normally reside: the Department of Justice. The fact sheet tells a different story.
In this instance, too, someone somewhere may have decided that an executive action announcing that the president was undertaking his own criminal investigation was imprudent, and that the fact sheet could do that work. There is no indication in this second term that Trump would care about the nuances, such as they are, involved here, but it seems clear that a decision was made, which he evidently accepted, to achieve the result he wanted in this two-step fashion.
Yet, despite all these moves, the structure of the executive order speaks clearly to the novel character of this presidential initiation of a criminal investigation of a specific party. It is defined by three deeply politicized features: how the president establishes a basis for an investigation, how he directs the manner in which the attorney general should conduct it, and the extent of his own involvement in finding the facts and determining whether charges will be brought.
“Evidence” and the Basis for an Investigation
The president has directed the DOJ to investigate but has included in the directive his judgment about the “evidence.” This evidence is derived in part from unidentified “press reports.” But he cites and relies still more on a congressional investigation conducted by his own party in the House. The state investigations cited by the fact sheet are all being conducted by Republican attorneys general.
The directive is not solely a direction to launch an inquiry. It drives any such inquiry toward a conclusion, setting out Trump’s view of the “evidence,” which he terms “extremely troubling.” It is difficult to imagine the attorney general—much less one who has pledged fealty to a president she has described as the greatest in history—reporting back to the president that, no, sorry: nothing there.
Moreover, the reliance on a congressional investigation vastly magnifies the dangers of presidential intervention in the law enforcement process. Both parties have routinely accused the other of partisan misuse of congressional investigative powers. And in the politically most charged cases, congressional committees not atypically refer matters to the department for criminal investigation. In some, if not many, cases, these referrals are exercises in political theater with scant possibility of producing a full-fledged investigation or, down the road, charges. The critical protection against political abuse of law enforcement is DOJ independence in the professional, apolitical evaluation of the referral. The norms check the politics.
With the norms gone, and DOJ independence replaced by presidential control, the potential for political abuse skyrockets. Either party affiliated with a president in the White House can agree to initiate an investigation that will serve as the purported predicate for a presidential intervention in law enforcement like this one. In effect, the process invites political “set ups” for politically driven investigations and prosecutions. And willing state attorneys general can provide additional support from that direction.
The Conduct of the Investigation
The president has set a time limit on the completion of the investigation—180 days. Normally, of course, criminal inquiries proceed on a schedule dictated by professional investigative requirements—they vary in length depending on the facts found, including new leads that may alter their course and certainly affect their timetable. By the terms of the memorandum, Trump wants “results” in six months. A criminal inquiry tailored to that demand may meet the president’s priorities and preferences, but only at the cost of professional law enforcement standards that determine the rigor of the inquiry and also serve to protect the rights of the targets, subjects, and witnesses.
The Outcome of the Investigation
The memorandum’s direction to the attorney general to report to the president “results” within six months leaves open the question of who decides whether those “results” merit bringing charges. The memorandum requires an investigation. It is possible that the AG will report the results of that inquiry along with a decision on whether to prosecute. But the memorandum does not rule out the president’s involvement in this next and decisive step after the inquiry has been completed. And even if the outcome is not the filing of charges, the investigative process Trump has ordered will entail cost and disruption for the target.
The White House Counsel
A final note on the role of the White House counsel. The counsel is one of the addressees of the memorandum, and the attorney general is directed to report to the president through him. It is highly likely that his office had the lead pen in the construction of this process—both in the preparation of the memorandum and of the fact sheet. It would certainly be unusual if this was not the case.
What, then, does this process suggest about his office in this administration?
This president made clear in his first term that he saw no reason why he should not control the Department of Justice. Now, in his second term, he is asserting that control and is doing so, as in the dismissal of the Mayor Adams case, in politically charged matters. Any White House counsel who agreed to take the job presumably understood what it might, in this respect, require. But the ActBlue intervention is of a different order than presidential intervention in specific cases the department has prosecuted in the ordinary course, even if these interventions also may do serious damage to norms insulating criminal law enforcement from political control. The process established to target ActBlue is now ready-made for systematic use in White House demands for specific investigations of specific persons, including, as in this case, an organization active in support of the opposition political party.
It is important note that while the president has previously directed an inquiry of a foe—Christopher Krebs, the head of the Cybersecurity and Infrastructure Security Agency during the first Trump administration—this action, while similar, is not the same in key respects as the criminal investigation that Trump has ordered in the case of ActBlue. Krebs had infuriated the president by affirming the secure conduct of the 2020 elections. But in his case, in addition to stripping him of his security clearances, the president directed only a “review” of his activities as a government employee and did not explicitly order a criminal investigation—much less one purportedly justified by his citation to “extremely troubling evidence” of illegal conduct.
The White House counsel is playing a major supporting role in the thoroughgoing demolition of core rule-of-law norms in the ActBlue action. One cannot know in detail, of course, how the White House counsel advised the president in this matter. But while, as noted, the issuance of the memorandum in tandem with the fact sheet reflects some lawyering, it is, at best, cosmetic in nature. To long-time critics of the institution of the White House counsel, who have alleged that it is more enabler than true counsel, this will come as no surprise. However one views the fairness of this charge as leveled at past administrations, the conclusion to be drawn in this one seems inescapable: The enabling has crowded out the counseling.