Jurisprudence

The Lowest Possible Bar

The Justice Department lawyers who declined to help Trump steal the election deserve our gratitude. But America is in big trouble if that’s our standard for heroism.

Three men sit for a hearing.
Former Assistant Attorney General for the Office of Legal Counsel Steven Engel, former Acting Attorney General Jeffrey A. Rosen, and former Acting Deputy Attorney General Richard Donoghue testify during the fifth hearing of the Jan. 6 committee. Mandel Ngan/AFP via Getty Images

There was some big, big adult-in-the-room energy for day five of the Jan. 6 committee hearings as three insiders’ insiders, all high-ranking Republican lawyers, took turns demonstrating what many previous witnesses could really only have guessed at.

To wit: Donald J. Trump instigated the efforts to rope the Department of Justice into setting aside the 2020 election results. He refused to stand down despite literally dozens of admonitions that his claims were absolute nonsense. Those who stuck around the DOJ deep into the president’s King Lear–on-the-heath phase only managed to right the ship of state in the eleventh hour by threatening mass resignations if Trump went through with his plans to install a lackey named Jeff Clark as acting attorney general. And that was because they balked at the prospect of Clark—an environmental lawyer from the civil division whose only qualification was a willingness to help overturn the election—roaming free throughout the cosmos, investigating Italy, and suitcases, and hundreds of thousands of dead voters to his heart’s content.

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In this telling, former acting Attorney General Jeffrey Rosen, his deputy Richard Donoghue, and former Office of Legal Counsel head Steven Engel were willing to go along with a lot of Donald Trump’s worst impulses and imperatives, but they drew the line at Italian satellites, crackpot YouTube videos, and allowing Dr. Strangelove to drive government into a ditch.

You see, there’s crazy, there’s cruel, there’s self-dealing—but then there is utterly bonkers. And like former Attorney General Bill Barr, who testified on video in the hearings, this is where the adults in the room concluded that they must draw the line. Bonkers. It’s a low bar, but like millions of others I find myself pathetically grateful that there is a bar at all. There was something gratifying about listening to former White House lawyer Eric Herschmann recount how he slapped poor Jeff Clark all over all the time zones. (“I said … fucking a-hole … congratulations: You’ve just admitted your first step or act you’d take as attorney general would be committing a felony.”)

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At another level, sit with the fact that Bill Barr agreed to do an investigation of election fraud in the winter of 2020 because he was convinced that if he didn’t, he wasn’t “sure we would have a transition at all.” Sit also with the fact that acting Defense Secretary Christopher Miller called the defense attaché in Italy to check whether an Italian satellite had indeed switched votes from Donald Trump to Joe Biden. It brings to mind mostly how adults often move mountains to pacify the squalling of toddlers or, more personally, what used to happen when my son would leave his snuggle donkey at preschool and we needed to call everyone in town to get the building unlocked so he would sleep at bedtime. One might have hoped that being the adult in the Oval Office demanded a loftier standard. But if Thursday’s testimony is any indication, every day was Snuggle Donkey Day in the Oval.

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Again, count me among those who are glad that the people investigating the imaginary suitcase scandal in Georgia didn’t turn up any imaginary corroboration of it.

The night Donald Trump was elected, I wrote that everyone at the DOJ should, as I put it then, take a knee, rather than work to achieve the vicious ends he sought to deliver, from the Muslim ban to the wall with Mexico. And over the course of Trump’s term, the idea that Trump could be contained by sober, professional Republicans from the military, national security, and legal worlds—these proverbial adults in the room—became something of a punchline, as a perpetually tantruming president humiliated and tossed aside one such previously respected adviser after another.

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After today, it’s clear the country avoided something chilling because many competent and principled people—or at least people who valued basic democratic norms—did stay on in government, despite the liberal carping. The counterfactual might have been acting Attorney Jeff Clark prosecuting Shaye Moss and Ruby Freeman for tampering with the Georgia election by way of a ginger mint.

Yet, the fact that we are in a moment in which a whole lot of people who might have testified at the second impeachment hearing for Donald Trump waited until they were subpoenaed to explain that he was careening toward what several warned would be a constitutional crisis seems to prove that we are now invisibly turning bystanders into upstanders, and upstanders into superheroes.

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There will be fallout from today’s hearings. We have a video of GOP stalwarts asking for pardons that were broader in scope than the one sought by Richard Nixon. You know, one of those pardons for attempting to overthrow the entire government and “any and all things?” We have Donald Trump asking to have voting machines seized, and White House call logs that seemed to be of the view that Jeff Clark was already the attorney general by January of 2021. It will be harder, going forward, for Trump to throw folks under the bus as it becomes ever more apparent that he was the one driving it.

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But if one were to worry about where these hearings are headed, the worry would be just this: If the adults in the room are reduced to placating the toddlers and the heroes of democracy are the ones still unwilling to commit actual felonies, then the job description for adults and heroes is pretty thin. Our standards for honorable public service have fallen so far through the floorboards that we are now supposed to consider it a relief that Trump’s Cabinet members were doing careful deep dives on what Rep. Adam Kinzinger ultimately characterized as “far out fully fabricated whack job conspiracy theories.”

Nobody is gladder for Rosen, Donoghue, and Engel than constitutional democracy is today. But this is all the root cellar, not the ceiling, and it doesn’t bode well for the next coup if this is the most we can come to expect.

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