Calls For Justice Department ‘Independence’ Are A Sign Of GOP Weakness

There is a kind of conservative who believes the republic will be preserved by procedural fastidiousness — that if only the right norms are observed, the right courtesies extended, the right institutional deference maintained, then justice will somehow emerge from the machinery of the state as though it were a thermodynamic inevitability. Writing in National Review last week, Paul McNulty and John G. Malcolm have offered the latest installment of this genre.

The authors are colleagues and friends of mine from the Bush 43 Justice Department era and Federalist Society circles, so I mean them no ill will. But their advice to President Trump is classic “weak sauce” that must be discarded because it’s gone sour.

Their thesis is familiar: “The attorney general is not the president’s fixer;” the Department of Justice must maintain institutional independence; President Trump should “break the cycle of weaponization” by declining to wield the weapons that were turned against him. The argument sounds principled. It even feels principled in the way all arguments feel principled when they demand restraint only from one side. But it is, at bottom, an argument for surrender dressed in the vocabulary of civic virtue.

Consider the authorities summoned to support this position, including Lord Hewart, who warned against the “new despotism” of administrative overreach. One hesitates to interrupt a good lecture, but it must be observed that Gordon Hewart, 1st Viscount Hewart, was lord chief justice of England, not of the United States nor any other American jurisdiction. He was a British jurist writing about British parliamentary delegation to British administrative agencies under British constitutional principles that recognize no separation of powers as Americans understand it.

To invoke Hewart as though he were an American Founding Father, or even a relevant interlocutor in the American constitutional tradition, is rather like citing the rules of cricket to settle a dispute about baseball. The man has nothing whatsoever to do with our Constitution, and the fact that his name is pressed into service to restrain a Republican president tells you everything you need to know about the enterprise. One searches in vain for the moment Democrats consulted Lord Hewart’s jurisprudence before launching their campaigns of lawfare.

Then there is Griffin Bell, President Carter’s attorney general, held up as a model of institutional rectitude. Bell served a Democrat president who advanced a quite unpopular Democrat agenda, leading to stagflation in the 1970s. To hold Bell up as an authority for Republicans is to concede that the norms of the left’s legal establishment are the only legitimate norms. Democrats do not consult Bell’s ghost when deciding whether to indict a former president. Why should the right consult him when deciding whether to hold the architects of that indictment accountable?

The authors urge President Trump to “break the cycle of weaponization.” This is the Marquess of Queensberry Disease in its purest form. The Marquess of Queensberry, of course, lent his name to the rules that transformed bare-knuckle prizefighting into a sport governed by gloves, rounds, and referees — a codification of fair play that made boxing civilized and also, crucially, made it survivable only for those willing to fight within the rules. The phrase “Marquess of Queensberry Rules” has passed into the language as a synonym for fair conduct, for doing things the right way, but in an effete way. And this is precisely the disease from which the Republican establishment suffers: an obsessive, almost pathological insistence on fighting by rules that only one side observes.

The Democrats do not fight by the Marquess of Queensberry Rules. They fight with lethality. They fight to destroy. And they have demonstrated this repeatedly, across every institution of American life, with a consistency that ought to have discredited the Queensberry caucus long ago.

Consider the record. The Russia hoax — the single greatest political fraud perpetrated on the American public in modern history — was not a product of rogue actors. It was a coordinated operation involving the FBI, the Department of Justice, the intelligence community, and the Obama White House, designed to cripple a sitting president on the basis of fabricated evidence paid for by Hillary Clinton’s campaign.

When the hoax collapsed under the weight of its own dishonesty, no one was held accountable — at least not yet. No FBI official was prosecuted. The institutions simply moved on to the next line of attack, and the Queensberry Republicans murmured that we must preserve “the norms” — oh, “muh precious norms.”

Then came the lawfare of the Biden era, a systematic campaign to imprison and bankrupt a former president and prevent him from returning to office through aggressive prosecutions and novel legal theories that many commentators regarded as politically motivated.

Each of these cases, taken individually, might be defended by its partisans as legitimate law enforcement. Taken together, however, they constitute a pattern that no honest observer can deny: the systematic deployment of the legal system as a weapon of political warfare. And the response from the Queensberry Republicans? Calls for restraint. Insistence on norms. Warnings about the dangers of weaponization. The Democrats played hardball, nuclear and scorched-earth hardball, while the Republicans played comparative Tiddlywinks.

Now consider what the Arctic Frost document drops and hearings have revealed. On April 21, Sen. Eric Schmitt, R-Mo., chaired a Senate Judiciary subcommittee hearing that exposed “Operation Rampart Twelve,” yet another Biden-era FBI investigation targeting Republican members of Congress. The FBI covertly obtained sitting lawmakers’ phone toll records. Even DOJ prosecutors voiced concern about the legal requirements for this action, yet the investigation proceeded. The FBI closed it only after failing to find credible evidence, which is to say, after mapping the communications networks of the political opposition without cause in true East German Stasi fashion.

The hearing also produced documents showing collusion between the Biden administration and Fulton County District Attorney Fani Willis’ office during her get-Trump probe. The Biden White House was not merely tolerating the weaponization of justice; it was orchestrating it, coordinating across federal and state lines to construct legal siege works around a single man, Donald Trump, and the political movement he represents.

This is not speculation. This is well-documented. Yet the Queensberry Republicans continue to insist that the proper response is to unilaterally disarm, to appoint an attorney general who will stand aloof from the political battle as though the battle were not already raging around him.

The Supreme Court, at least, has begun to impose some corrective measures. In Fischer v. United States (2024), the court rejected the Biden DOJ’s expansive interpretation of 18 U.S.C. § 1512(c)(2), repudiating a prosecutorial strategy wielded against Jan. 6 defendants. The Queensberry Republicans noticed this development, nodded gravely, and then resumed their lectures about the importance of “our institutional norms,” as though the institution the Supreme Court had just corrected for abusing its power was somehow still owed deference.

The question is not whether the attorney general should be a “fixer.” The question is whether the attorney general should be a conscientious and energetic objector in a war the other side started and shows no signs of wanting to end. The authors of the National Review piece write as though the Department of Justice were a neutral instrument that has merely been temporarily captured by partisans as a kind of surprising “one-off” — as though the restoration of neutrality were simply a matter of appointing the right sort of person and then standing back.

But the Department of Justice is not neutral. It has not been neutral for years. It was weaponized against a president, his supporters, Republican members of Congress, and the constitutional rights of American citizens. The evidence is not speculative; it is documentary, voluminous, and growing with each new revelation from the Arctic Frost investigation.

To respond to this weaponization by insisting on unilateral restraint is not principled. It is pathological. It is the Marquess of Queensberry Disease: the compulsive need to observe rules the other side has already discarded, to extend courtesies that will never be reciprocated, to fight a knife fight with a copy of “Robert’s Rules of Order.”

The Democrats understand power. They understand that institutions are instruments, not limp shrines. They understand that the attorney general who refuses to investigate the investigators is not preserving the rule of law but ratifying its abuse. And they are counting on the Queensberry Republicans to continue their noble, futile, self-immolating insistence on fighting fair.

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Jeffrey Bossert Clark is the vice president of litigation at the Oversight Project. He is a past acting administrator of the White House OMB’s Office of Information and Regulatory Affairs, as well as Department of Justice assistant attorney general of two of its seven litigating divisions, and a veteran of the Bush 43, Trump 45, and Trump 47 administrations. He also knows a thing or two about lawfare — from personal experience.