Walter Olson
President Donald Trump’s series of executive orders proclaiming various lawyers and law firms guilty of supposed offenses and subjecting them to severe unilateral penalties—“orders of attainder,” as Prof. Paul Horwitz evocatively calls them—have largely focused on lawyers who’ve engaged in campaign, electoral, or prosecutorial work against Trump personally. Now two new penalty orders broaden the range of targets to those who have publicly undercut Trump’s regular theme that the 2020 election was rigged against him.
His order against one of these targets, his first-term cybersecurity chief Chris Krebs, also escalates the stakes in a scary way. It orders the Justice Department to investigate Krebs, who vocally and forthrightly defended the integrity of the 2020 election at the time, even though Krebs has not been plausibly linked to any legal offense. (A second order commands that Miles Taylor, a former senior official at the Department of Homeland Security, be investigated.)
Trump’s April 9 revenge order against law firm Susman Godfrey has been widely associated in press accounts with Susman’s role in pressing a series of defamation lawsuits on behalf of client Dominion Voting Systems against right-wing media outlets such as Fox and NewsMax, along with Trump allies, for spreading luridly false claims about Dominion’s supposed involvement in 2020 election fraud. While Trump has thrown around language in earlier penalty orders about law firms’ responsibility for unfounded or vexatious claims, what seems to bother him about Susman’s Dominion work is its success in winning favorable rulings before judges and hefty settlements suggestive of defendants’ very real fear of large adverse verdicts.
In racking up its victories, Susman Godfrey has done much to reinforce public awareness about how the scattershot election fraud theories of Trump and allies about 2020 have fallen flat on their face in actual courtrooms. Chris Krebs undermined the fraud narrative in a different but also powerful way. As head of CISA, the agency charged with keeping guard against electronic hacking and interference with voting, he publicly and accurately stated at the time that his agency had found no evidence that anyone had tampered with electronic voting or tabulation in the 2020 election. Then-President Trump promptly fired him for his trouble.
Now it seems he is due to pay a further price. According to the revenge order, “Krebs, through CISA, falsely and baselessly denied that the 2020 election was rigged and stolen, including by inappropriately and categorically dismissing widespread election malfeasance and serious vulnerabilities with voting machines.”
At The Dispatch, columnist Nick Catoggio writes of the “nakedly retaliatory” order:
I believe this is the first time he’s gone as far as to officially penalize someone for rejecting his conspiratorial nonsense about the 2020 election, a position shared by a large majority of the American public.…
Doomsayers like me worried that his ‘retribution’ mindset would lead him to sic government agencies on his political enemies and harass them whether or not they’re credibly suspected of wrongdoing. Well, here we are. It took less than three months.
Politico notes another way in which the order attacks an important norm:
A president ordering investigations of specific individuals whom he considers to be his political enemies is a remarkable breach of the traditional wall of separation between the White House and the Justice Department. Under that norm of separation, criminal investigations are supposed to be insulated from political pressure, but Trump has repeatedly scorned the notion of DOJ independence. Making Wednesday’s action even more remarkable, and perhaps unprecedented, is that Trump used the formal power of executive orders to effectively brand two individuals as subjects of criminal investigations.
Two years ago Cato’s Clark Neily cited “one of the most chilling lines of the 20th Century,”
when Josef Stalin’s chief of secret police Lavrenty Beria sought to assure his boss that literally anyone could be convicted and purged by boasting, “You show me the man, and I will find you the crime.” Today, few American prosecutors would make that same boast (at least out loud), but they certainly could.
Trump appears to be inviting the US Department of Justice to test this maxim out against a man, Chris Krebs, who to all outward appearances is innocent of any wrongdoing. Is there no remedy?