The credibility of federal law enforcement depends on its not being politicized.
The credibility of federal law enforcement depends on its not being politicized.
T he federal government is so big and dysfunctional that the bureaucracy it created to monitor itself, the U.S. Government Accountability Office, can only estimate the fraud committed against government programs within a range of about $300 billion — low-ball, it could be $233 billion, but it could be as much as $521 billion. The estimate released last year covers the time frame from 2018 through 2022 (i.e., much of the Covid pandemic), and the GAO can’t be more precise because, while detected and adjudicated fraud is determinable, the amount of “undetected potential fraud,” believed to be gigantic, can’t be reliably counted.
It seems like a no-brainer, then, that someone should be in charge of doing something about it. That is what President Trump purports to be doing by naming Colin McDonald, a well-regarded senior prosecutor in the office of Deputy Attorney General Todd Blanche, to be the new assistant attorney general for fraud.
Alas, as is often the case when the president unilaterally decrees a solution to a problem that his antennae tell him will capture the public’s attention and make life uncomfortable for Democrats, what he has in mind, though probably legal, is practically unnecessary and politically perilous.
As I’ve observed too many times to count, you won’t find the Justice Department in the Constitution. It is a creature of statute established by Congress in 1870. The nation has had an attorney general almost from the beginning, but that post, despite its exalted status, was not ordained by the Constitution, either; it was established by the first Congress in the Judiciary Act of 1789.
See, while the Justice Department carries out the quintessential executive function of enforcing the laws and is thus part of the executive branch, Congress is constitutionally responsible for its existence, structure, and authorities.
Just as the president could not create the position of attorney general, neither could he create other top federal prosecutorial positions. Those jobs — most significantly, the ones that require nomination by the president and confirmation by the Senate, pursuant to the Constitution’s appointments clause — are established by Congress.
The best known of these are the attorney general’s key subordinates, the deputy attorney general, the associate attorney general (the AG’s top policy and management adviser), and the solicitor general (who represents the government in the Supreme Court). There are, however, several other supervisory prosecutorial positions, referred to as assistant attorneys general (hereafter, AAG — but not to be confused with the aforementioned associate attorney general).
AAG is not an exalted title dreamt up by the DOJ; it is a position formally established by statute — Section 506 (of Title 28 U.S. Code, in which Congress extensively regulates federal law enforcement). It authorizes eleven AAGs. With respect to most of them, moreover, Congress has further defined AAG slots as supervisory over particular enforcement missions. These are the AAGs for the DOJ’s major divisions: criminal, civil, civil rights, tax, antitrust, and national security.
The president has some flexibility. Section 506 authorizes him to appoint other AAGs besides those who run these specific divisions. But the statutory limit is eleven; if the president wants more than that, it would require a legislative amendment.
The Trump administration has been a laggard on filling high government offices and getting its nominees approved. Some of this, as we’ve observed in the context of district U.S. attorneys, is fallout from the foolish attempt to circumvent the confirmation process. In general, though, the administration has been slow to fill some significant jobs (a problem in Trump’s first term, too).
The president has not named, much less gotten confirmed, the full complement of eleven AAGs. By my count, there are six confirmed AAGs; it is not clear to me how many other nominations for AAG posts have been announced.
As noted above, McDonald’s proposed AAG position is within Trump’s statutory authority. Democrats may dispute that, contending that only Congress can create an AAG specifically for fraud enforcement. I believe, however, that as there are only eleven or fewer confirmed AAGs, Section 506 gives the president leeway to define some of them as he sees fit.
The real objections are not legal but political — and weighty.
The president understandably wants to hype the outrage of fraud against the government. The multibillion-dollar scandal in Minnesota has engulfed major Democrats. It would have been a bigger story had Trump not stepped on it, in a flawed attempt to spotlight it, by surging ICE and the Border Patrol in the Twin Cities.
Nevertheless, the Justice Department already handles major fraud. Indeed, the prosecutions that blew the lid off the fraud rackets in Minnesota were brought by the Justice Department. Both the Criminal and Civil Divisions have fraud units. And that’s just Main Justice. Every one of the nation’s 94 district U.S. attorney’s offices has a fraud unit — often multiple fraud units (covering major criminal and civil fraud schemes, and fraud against the government and the financial markets). The Minnesota fraud cases were worked by the U.S. attorney’s office in Minneapolis.
There is no need for an AAG dedicated solely to fraud. There is no reason to believe having one would improve the government’s anti-fraud initiatives. To the contrary, it might be counterproductive: It would require restructuring the DOJ to shift fraud resources (which are working active cases) from their present divisions to a new one that is not presently up and running.
Redundancy is bad but not the main objection.
When Trump officials, including Vice President JD Vance, first heralded the creation of an AAG for Fraud Enforcement, the notable thing was that this prosecutor would report directly to the White House — to the president and vice president — not to the Justice Department.
That would be disastrous. The credibility of federal law enforcement depends on its not being politicized. On that score, the Trump Justice Department has exacerbated the lawfare damage done by Democratic administrations. It revels in investigations and prosecutions of Trump’s political enemies, while laboring to discredit the DOJ’s own investigations of the president himself, his cronies, and the Capitol riot. But when asked, at least the president claims, half-heartedly, to know nothing about these efforts (while, in the Trump way, pointing out that, constitutionally, he is the nation’s chief law enforcement officer and can give the DOJ whatever guidance he wants).
The implication of assigning a prosecutor to work directly for the White House would be that prosecution in the United States is now primarily driven by political considerations, not the legal fundamentals of non-partisan prosecutorial discretion guided by evidence, penal statutes, and jurisprudence. Traditionally, presidents have given the DOJ policy guidance but stayed out of individual cases, not just because it’s the right thing to do but because of self-interest: As the Democrats can tell you, having reversed Trump’s political demise and lost the 2024 election by trying to prosecute him into oblivion, the public wants honest law enforcement, not lawfare.
Twenty years ago, congressional Democrats manufactured a scandal against President George W. Bush’s attorney general, Al Gonzales, involving the firing of a handful of district U.S. attorneys. It led to allegations that White House political advisers were dictating critical DOJ functions — hiring standards, firing, and (it was hinted without evidence) influence over prosecutorial decision-making. The smoke generated was enough to force AG Gonzales’s resignation.
President Bush replaced him with an estimable former federal judge, Michael B. Mukasey. Besides imbuing the DOJ with his own rectitude, AG Mukasey moved decisively to restore the DOJ’s reputation for integrity and nonpartisan prosecution by issuing guidelines limiting contacts between the White House and Justice Department prosecutors. The message was clear and unimpeachable: We might as well not have a Justice Department — it would be too dangerous to liberty to have one — if it was being directed by the incumbent administration for its political expedience.
And yet, the White House is now talking about prosecutors who are formally directed by . . . the White House.
I can’t imagine that the Senate would abide that. Some Republicans would object, despite the Svengali hold the president and his base have had on the party. I assume Democrats will uniformly refuse to confirm an AAG on such an arrangement, despite McDonald’s strong credentials.
There’s a caveat, of course: When considering the norm-breaking precedents the Trump administration is setting, remember that, regardless of how indignant they appear for public consumption, they’d be delighted to exploit a new governing arrangement, in which Democratic administrations unabashedly sic prosecutors on Republicans, conservative organizations, business enterprises, and other political scapegoats.
In more recent public talk of McDonald’s appointment, administration sources seem less jaunty about having prosecutors work directly for the president and the vice president. In Trump’s announcement of the appointment on social media, he stressed that McDonald would head up a new division of the Justice Department. Let’s hope that signals a retreat.
We can all agree that the government needs to do a better job against fraud. But far from eliminating it, prosecutions directed by political considerations rather than nonpartisan investigation would be the epitome of fraud.