The FBI investigation into Supreme Court Justice nominee Brett Kavanaugh’s alleged sexual assault has once again put the spotlight on the relationship between the Trump administration, the media and the American justice system.
As many outlets have reported Trump has continued his assault on the Mueller investigation. Claiming witch hunts and Democrat schemes despite both Mueller and his appointee, Rod Rosenstein, being Republicans. In an interview with Fox & Friends in August, Trump raised a concern with evidence obtained by a plea bargain and stated that it “almost ought to be illegal” for prosecutors to offer leniency in exchange for cooperative testimony, a practice which the Washington Post describes as being a “long established practice.”
The same Post article also highlights Trump’s repeated attacks on Attorney General Jeff Sessions; attacks which may undermine the reliability of the office and set a dangerous precedent. Former Attorney General Alberto Gonzales stated that Trump’s continued attacks, as reported by the press, may establish the act of berating the attorney general as “commonplace.” He also stated that the attacks do “undermine the credibility of the attorney general.”
Most recently, Trump appeared to support an FBI investigation into Brett Kavanaugh, but a few days later tweeted appearing to associate the FBI investigation with partisan motivations from the Democrats.
There is an irony in the methods used by the President: the free and independent press, essential to a democracy, is being used by the executive branch to sow seeds of mistrust in the justice system (even as the President regularly attacks the press). This relationship raises very important questions about the state of our democracy. What are the implications of a president using media to attack the justice system? Do these attacks undermine American democracy? What is the media’s role in all of this?
Many believe the implications of the president’s methods threaten the underpinnings of democracy, including Randall Eliason, writer for the Washington Post and Professor of White Collar Criminal Law at The George Washington University Law School. In an article for the Post, Eliason described the danger of undermining confidence in the justice system, speaking specifically about the Mueller investigation: “Destroying the fundamental norm under which we have operated for more than two centuries — that criminal law is not used for political purposes — will send this country to a dark place where we don’t want to be.”
Mediafile interviewed Professor Eliason to discuss this article and the implications.
“He [Trump] has a pattern, for more than a year, of attacking foundations of the justice system and the rule of law by his attacks on the FBI and his attacks on the Mueller investigation” said Eliason. “It’s unprecedented for a president because so much of the justice system depends on public faith in those institutions, faith that they are not political.”
Eliason says faith in an impartial justice system (as opposed to a justice system acting as a political arm) is a fundamental aspect of American rule of law. When Trump and his administration attack Mueller and people at the FBI with “absolutely no factual basis, it is dangerous because it threatens to shake public confidence in those institutions.”
When asked if the erosion of trust could reach a point beyond repair, he stated “I certainly think that is possible.”
“Public confidence in the criminal justice system is eroding” said Peter Loge, an expert with 20 years of experience in communications and political strategy, including a presidential appointment to the Food and Drug Administration. In an interview with Mediafile, Loge said, “Without confidence in the system, the system can’t work.”
Gallup poll trends support claims that confidence is being lost in the justice system. According to polls, 34% of Americans have very little confidence in the criminal justice system tied with 2016 for the highest percentage since 1997. Additionally, Americans with ‘a great deal or quite a lot of confidence’ in the justice system dropped five points to 22%, the lowest in 10 years.
Neil Katal, acting Solicitor General under President Barack Obama, stated that America is facing “a potentially indelible smearing of our law enforcement institutions.”
According to Loge, “Democracy is a series of conversations. If you undermine the faith in the conversation, if you undermine faith in the discourse and dialogue, if you undermine faith in how you talk about things, you are really undermining our constitutional republic.”
Given the gravity of the situation, it is important to understand the position in which the media has found itself.
“The press are in a tricky spot,” said Loge. “On one hand, you want to report on what’s going on, even if what is going on appears to run counter to a system that allows the press to freely report. On the other hand, you don’t want to be complicit… in promoting things that could have a deleterious effect.”
While acknowledging the justice system has flaws, Loge asserts that the way to improve the justice system is by pointing out its flaws. “There are ways to do it that don’t undermine the justice system as a whole and call into question the premises” upon which the system stands. This distinction between flaws to be corrected versus undermining the premises upon which the justice system is built is critical. Loge believes undermining the premises of the justice system is dangerous to our democratic system.
“I think the press could do a better job taking a stand on certain democratic norms” Loge states, though he recognizes that this is not easy. “We are reluctant… to say ‘this is correct’ because you are expressing an opinion, which reporters are discouraged from doing… it would be good if the press could do a better job of saying ‘this violates democratic norms.’”
Even as Trump attacks the media he uses that same media to tear down public institutions. It is not the role of the media to police news coming from the executive branch, yet the press has found itself in a dilemma as it stands between the president and the justice system, between “flaws” and fundamental premises. How the media handles this dilemma will have great consequences.