A Declaration of Dependence

No institution will be spared

Photo by Tasos Katopodis/Getty Images

Last week showcased how the Trump Administration seems hell-bent on destroying norms of political independence across the federal government and bringing every institution under the President’s thumb.

Let’s start with the judiciary. Trump has been politicizing the federal courts since he first ran for president in 2016. When a judge ruled against him in a case involving Trump University, he called the judge “a hater of Donald Trump.” After becoming president, he referred to a judge who ruled against the administration in an immigration case as an “Obama judge.” Chief Justice Roberts responded with a rare rebuke, stating, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges” and telling the public “[t]he independent judiciary is something we should all be thankful for.” That seems almost quaint today, as Trump has ramped up his criticism of judges who issue decisions he does not like, referring to them as “radical left lunatics.” People now seem to barely bat an eye at these outrageous slights. But as former federal judge J. Michael Luttig has observed, this rhetoric is “an existential threat to the rule of law” because the objective behind it is to “delegitimize those courts.”

Trump is further seeking to erode judicial independence by restocking the federal bench with loyalists. In his first term in office, he mainly relied on the Federalist Society for judicial nominations. Sure, there were some exceptions for partisan hacks and bloggers who seemed far removed from the usual federal judge prototype. But by and large, his judicial nominees looked like the kind of people who would get the nod in any conservative Republican administration.

This time around, however, Trump has a new blueprint, and the prototype is Emil Bove III. Bove was nominated for a lifetime appointment on the Third Circuit, and his chief qualification seems to be loyalty to Trump. Trump announced the nomination by stating Bove would “Make America Great Again” and “will never let you down,” thus touting Bove’s loyalty to Trump and the MAGA agenda.

Bove’s tenure in the Trump Justice Department shows just how loyal he is to Trump and how unconcerned he is with the rule of law and judicial authority. A whistleblower has alleged that Bove responded to a potential order in an immigration case by stating that the Justice Department might have to “tell the courts f*** you.” One can debate the finer points of judicial temperament, but this is clearly outside all bounds. Or take Bove’s actions in the Eric Adams case. Bove led the effort to drop corruption charges against Adams to get Adams to cooperate with the administration’s immigration agenda. Bove, himself a former prosecutor, knows the threat of prosecution or leniency for partisan gain is wildly inappropriate. One of the SDNY prosecutors in Adams’ case, Hagan Scotten, put it well in his resignation letter to Bove, noting that “[n]o system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives.” But Bove’s lodestar is not the rule of law or the importance of non-political prosecution. It is devotion to Trump and his agenda. That also accounts for Bove’s willingness to fire prosecutors who dutifully did their jobs pursuing the January 6 cases.

Indeed, Bove’s assault on prosecutorial independence reflects Trump’s own efforts to politicize the Department of Justice and similarly undercut its independence. This, too, was on showcase last week and is also not a new obsession for Trump. In his first term, he urged then-FBI Director James Comey to terminate the investigation into Trump’s former National Security Advisor, Michael Flynn. He called for DOJ to investigate his political rivals. Former SDNY U.S. Attorney Geoffrey Berman recounts in his memoir that he faced pressure from DOJ to pursue politically motivated investigations and drop cases against Trump’s allies. Trump vowed to seek retribution against his enemies as a key part of his 2020 campaign – and that effort is well underway. Firing the January 6 prosecutors, stripping security clearances of people who have criticized Trump, penalizing law firms who employed prosecutors who investigated Trump, and investigations into Trump critics are just the start.

The firing last week of Maureen Comey, James Comey’s daughter and a prosecutor in the case against Jeffrey Epstein’s ally, Ghislaine Maxwell, is just the latest assault on the independence and sanctity of prosecution in America. Maureen Comey’s memo to her colleagues was explicit about what her termination means. “If a career prosecutor can be fired without reason, fear may seep into the decisions of those who remain. Fear is the tool of a tyrant, wielded to suppress independent thought.” Indeed. Trump’s toolkit is all about fear and coercion, coupled with rewards for loyalists. That is why the January 6 insurrectionists received full pardons in spite of their violence and past records. Trump has no regard for non-partisan and independent prosecutors. He wants loyalists there, just as he wants them in the judiciary.

As if threats to the judiciary and prosecutors were not enough, Trump is aiming to undermine the independence of yet another venerable institution that has long been protected by a norm of insulation: the Federal Reserve. That, too, dominated the news last week. The Federal Reserve was deliberately designed to be insulated from political pressures so that it could make long-term economic decisions in the Nation’s interest free from the short-term demands of election cycles. We have countless examples from history of central banks bending to political and producing runaway inflation, currency devaluation, and economic instability. That is why presidents have recognized the sanctity of Fed independence and have complied with the statute that provides the Federal Reserve Board of Governors with tenure protection. Even the Supreme Court, which seems committed to allowing the president to fire just about anyone for any reason, has signaled that the Federal Reserve is different. In its order allowing Trump to fire officials from the Merit Systems Protection Board and the National Labor Relations Board who have for-cause tenure protections akin to those of the Fed’s Board of Governors, the Court distinguished the Fed: “The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.

Trump, however, has lost his patience with current Federal Reserve Chair Jerome Powell (whom Trump himself appointed), calling him a “dumb guy, and an obvious Trump hater” and accusing him of doing a “lousy job” for failing to cut interest rates. (Powell has not done so because of the uncertainty created by Trump’s tariffs.) Trump went so far as to draft a letter firing Powell, which he shared with House Republicans last Tuesday. What has spared Powell (at least so far) is the reaction by leading bankers and the market. The dollar fell 1.2% after Trump floated his idea to the Republican lawmakers, and leading bankers spoke out in opposition.

The Fed is more directly and obviously linked with the health of the economy, so Trump has proceeded more cautiously in taking it down. But all three institutions – the judiciary, the Department of Justice, and the Fed – are critical pillars for a stable economy. That is because the rule of law is also foundational for markets to operate predictably.

To Trump, however, all these institutions should be mere puppets bending to his will. He sees no value in their independence and uses vicious rhetoric to attack them so that his supporters will rally around Trump when he seeks to take them down. We’re not exactly a country rich in civics education, so the fear is voters have no idea just how dangerous all this is. For now, our best hope may be the markets and their reaction to how destabilizing all this will be if Trump’s efforts succeed and no institution is spared.