Trump doubles down on prosecuting his political enemies

I’ve got to hand it to President Trump. I would not have thought it possible, but he did something on Wednesday that distracted me from his tariff train wreck. 

Of course, I’m not saying this is a good thing. 

Chris Krebs is an American attorney who served as the director of the Cybersecurity and Infrastructure Security Agency during President Trump’s first term. On Nov. 17, 2020, in the midst of Trump’s efforts to overturn the election, Krebs issued a statement via Twitter pointing out that the fraud allegations and election conspiracy theories being pushed by the likes of Sidney Powell and Michael Flynn were completely unfounded. “Fifty-nine election security experts all agree,” he said, “'in every case of which we are aware, these claims (of fraud) either have been unsubstantiated or are technically incoherent.’” 

Trump fired him that same day, via tweet.

Krebs's betrayal obviously rankled Trump, because on Wednesday — more than four years later — he took the extraordinary step of signing an executive order commanding the Department of Justice to investigate and prosecute Krebs. At the same photo op, Trump signed a similar order regarding Miles Taylor, the man who wrote an op-ed and a subsequent book using the byline “Anonymous” describing the inner workings of the Trump administration. 

Politically, this is a gift to the Democrats. It allows them to force Republicans, yet again, to discuss Trump’s election denialism — something that 70 percent of voters dislike. The GOP is right that America wants to “move on” from the 2020 election. It is a real problem for them that Trump won’t. 

But this latest attack on the rule of law is much more than Trump throwing another tantrum about losing an election. It is a naked attempt to use the Department of Justice as a tool of political oppression.  

It’s significant Trump did this by executive order, complete with photo op, rather than by having a quiet word with Attorney General Pam Bondi. This isn’t just about punishing Krebs and Taylor — it’s a message to everyone else, no matter how insignificant, who might consider “crossing” him. We often say this or that is how authoritarianism begins. Well, this is what authoritarianism is.

There are so many things wrong with what Trump has done that I won’t even try to list them all. But here are a few to get you started.

First, it is an article of faith in America that law enforcement investigates crimes, not people. Trump’s executive orders turn that on its head. The order to investigate Taylor was described by the White House as commanding the Justice Department to “investigate his activities to see what else might come up in that context given his egregious behavior during your previous administration.”

Second, there is nothing to investigate. Both Taylor and Krebs spoke out in public, and their speech is protected by the First Amendment. And in Kreb's case, at least, he was absolutely and demonstrably correct — something Trump will never accept. That makes the president's threat all the more chilling: “This guy is a wise guy. ... We'll find out whether it was a safe election. And if it wasn't, he's got a big price to pay.”

Third, it would be grossly unethical for Justice Department attorneys to accept this kind of order. Trump may be the head of the executive branch, but as Jimmy Carter once put it, “I can remove the attorney general, but I cannot tell him who to prosecute. I cannot tell him who not to prosecute.”

Of course, apart from being unethical, Trump’s orders are also fundamentally wrong and dangerous. There was a time not so long ago when every single attorney at the Justice Department, right down to the interns, would have resigned rather than carry out an order like this. 

Trump is being shamelessly authoritarian, and it’s only the third month of his presidency. He is angry at Krebs because Krebs fulfilled his oath to defend the Constitution as the national director of cybersecurity. Trump wants to punish Krebs, not because he committed a crime, but because he refused to. 

Democrats have been largely in retreat since the election, but here, at last, is a battle line they can defend. Republicans will do what they always do with uncomfortable questions and try to avoid discussing Krebs altogether. Democrats should put them on the spot at every opportunity. They should ask Attorney General Bondi, and every other Justice Department attorney who appears before Congress, whether Trump’s order is ethical and whether it complies with Department of Justice policy.   

Krebs is being hounded and punished by the most powerful man in the world for doing his job and telling the truth. It’s wrong, and in Trump’s America it could happen to anyone if left unchecked. Trump will not stop abusing the power of the presidency until he is made to pay a price for doing so. Sometimes, you just have to take a stand.

Chris Truax is a charter member of the Society for the Rule of Law and an appellate attorney.