Donald Trump Gets Mad at Bruce Springsteen
How a baseless claim could become a “major investigation” in this administration
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After Bruce Springsteen sharply attacked President Trump and his administration at a concert in England, Trump responded in kind on Truth Social. But he did not stop there. Trump also announced in this post that he would call for a “major investigation” into the performances and appearances by Springsteen and other entertainers on behalf of the Kamala Harris campaign. He alleged that, under the campaign finance laws, the Harris campaign illegally paid for what in his view were endorsements: “Candidates aren’t allowed to pay for ENDORSEMENTS ... under the guise of paying for entertainment.” From Trump’s perspective, the investigation should be a foregone conclusion: He pronounced these appearances “NOT LEGAL,” both “CORRUPT & UNLAWFUL.”
It would be simple enough to pass off this episode as yet another Trump Truth Social moment, just a spur of the moment expression of rage at Springsteen, and then nothing more comes of it. Trump is clearly wrong about the law. Under long-established federal law, Springsteen may volunteer to perform for the candidates of his choice. He can say what he wishes from the stage. A campaign bears only the responsibility for paying for costs other than the performer’s own time in preparation and performance, such as transporting sound equipment or band members. Or the campaign could pay for his performance (though for reasons not relevant to this post, it is highly unlikely that the Harris campaign would pay for it, or that he would expect it to do so).
There is no chance, then, that the Trump government could, as a matter of law, successfully prosecute Springsteen for this form of support for Kamala Harris. And that is before getting to the due process and First Amendment defenses, such as those successfully raised by the law firms targeted by Trump executive orders, in a defense against a clearcut act of political retaliation.
The case nonetheless illustrates in ways that may not be immediately obvious how Trump could, if he chose to act on a threat of this nature, exact real costs of harassment and investigation through a sham legal claim. Regardless of the merits of the claim, those who are targeted in this fashion have a “legal problem” that may require—for however long and at whatever expense—engaging lawyers. Trump has set this administration up for particular success in making and following up on these threats to investigate through his sweeping claims of presidential authority, the concrete institutional and norm-busting changes he has made in federal law enforcement, and his choices of personnel for key positions in the federal law enforcement bureaucracy.
What follows is not a prediction, but an outline of what may have been in prior administrations, but not in this one, the far-fetched possibilities of a “major investigation” of someone, like Bruce Springsteen, who has aroused Trump’s fury.
Civil Enforcement and the Law of the Case
The investigation Trump pledged to call for concerns federal campaign finance. The responsibility for civil enforcement lies with the Federal Election Commission (FEC), an independent agency with bipartisan membership that construes and enforces the relevant statute, the Federal Election Campaign Act. The FEC long ago settled the legal question of volunteer entertainer support for candidates and has rejected the opportunity to reconsider its position. Moreover, at this time, the agency cannot return to the issue, or for that matter, any other. The agency is down to three of the six commissioners who may serve, and four are required to approve any action, including issuing an advisory opinion or acting on any complaint alleging a violation. Trump fired the then-chair of the commission, Democrat Ellen Weintraub, in early February. And two Republican commissioners have resigned since January. There is no apparent movement toward adding commissioners, who must be nominated by the president and confirmed by the Senate.
Trump might nonetheless consider direct presidential intervention to open up space in the law for an investigable campaign finance claim such as the one he has made against Springsteen. He has issued an executive order asserting authority over legal interpretations throughout the executive branch, with particular attention to independent agencies, one of which is the FEC. Under that order, “The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch. The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties.” On this basis, Trump might claim that he could order the agency to rescind or modify its position on lawful entertainer support for campaigns.
As it happens, even if he took this step, the commission currently lacks a quorum to take this action. It is not clear how Trump could get around this problem. But he would have other options.
Criminal Enforcement
Department of Justice (but not the Public Integrity Section)
The Department of Justice has concurrent authority over enforcement of the federal campaign finance law. It may await a referral from the FEC, when the agency uncovers what it believes may be criminal conduct that the department should investigate. The law specifically provides for such referrals. But the department is not obligated to stay its hand until the FEC decides to make a referral. And here there is no functioning FEC to make one.
Trump can turn to the DOJ and ignore the FEC. He could request that his Department of Justice, perhaps in consultation with his White House counsel, reconsider this point of law. One result, among others, might be a DOJ “policy” guiding the department in prosecutions of entertainer engagement with candidates, which would be included by amendment or supplement to its guide to the Federal Prosecution of Election Offenses.
Normally the Public Integrity Section of the department, which is charged with “oversee[ing] the investigation and prosecution of all federal … election crimes, and other related offenses,” would be in charge of or at least involved in any such inquiry into a potential criminal violation of the campaign finance laws, especially one that allegedly involved a senior public elected official—former Vice President and Democratic presidential nominee Harris. The section has long been staffed with career professionals with extensive experience in cases of this kind.
But Trump has now gutted the section, and the Justice Department is reportedly considering eliminating the requirement for investigators and prosecutors to “consult with the section’s attorneys during key steps of probes into public officials.” Further, the section reportedly no longer “directly handle[s] investigations or prosecutions.” In a presidency characterized by the appointment of personally connected and politically loyal lawyers to the department’s most senior leadership positions, this is a further move to weaken to a vanishing point the role of career professionals who provide indispensable protections against politicized law enforcement.
A Special Counsel?
The special counsel regulations remain on the books. They authorize the attorney general to appoint a special counsel in circumstances like these—a highly charged case in the middle of which is an active current member of the political opposition, who is also a former opponent of the president. The regulations authorize the AG to appoint a special counsel if she determines that a criminal investigation is warranted and that “extraordinary circumstances” or a conflict of interest require “in the public interest” the appointment of a special counsel who could pursue the matter with actual or perceived impartiality.
Given Trump’s experience with special counsels, and his rejection of the norm of DOJ law enforcement independence, it might seem odd that he would resort in this instance to an institution he abhors. But, then again, in a characteristically vengeful mood, he might think: Turn-about is fair play. If Trump were to take that path, this AG can be expected to appoint a special counsel from the ranks of lawyers considered dependably loyal to the Trump program—and to his goals for an investigation. The appointments so far to the key department positions foreshadow the probable outcome.
One feature of special counsel investigations is that an administration can cede “independence” to the counsel, or conduct closer supervision, as it chooses. If the investigation is aggressive and drawn out over an extended period of time, the president and attorney general deflect criticism by emphasizing that the responsibility is that of the counsel. It is the counsel’s investigation, not theirs: They must respect his or her choices. But in the choice of counsel, and in the other ways that the attorney general can still supervise with the president looking over her shoulder, the investigation can travel a path that meets presidential expectation.
Other Prosecution Teams?
The president could bypass the special counsel and just direct the attorney general to commence an investigation. The norm that would have functioned to prevent a president from issuing such an order is, in this government, dead. Trump has taken the first step in this direction, announcing in his Truth Social post his intent to call for an inquiry. And if this has resulted, or will, in a direct order to the AG to proceed with a criminal campaign finance investigation, it would not be the first time. He has already taken this course in ordering a criminal investigation of the leading Democratic online fundraising program. And Trump has made appointments that limit the potential for pushback from within DOJ. The lawyers he has picked for the senior positions are all graduates of his personal legal team in prior political battles, from impeachment to criminal prosecutions. Note: Bruce Springsteen resides in New Jersey, whose acting U.S. attorney, Alina Habba, is another former, high-profile member of the Trump criminal defense legal team.
Conclusion
These scenarios may not materialize. The point here is that, as dystopian as they are, they are not unrealistic. They are all made possible by a particular brew. In the Springsteen hypothetical a prime ingredient consists of expansive claims of presidential control over independent agencies—in this instance over an independent agency with a sensitive political charge, structured by Congress for this reason to be bipartisan. And the concoction proceeds from there with the systematic politicization of law enforcement through various means: major institutional changes within the Department of Justice, the appointment of loyalists to its senior positions, and the abandonment of crucial norms of DOJ independence from the White House.
What results may never be a full-fledged criminal prosecution, or one with any prospects of success. But it could be an extended and aggressive investigation highly damaging to all who are caught up in it. And it will have nothing to do with the legal merits of the allegation under investigation.