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Trump’s War on the Justice System Threatens to Erode Trust in the Law

by Inside Out

It is a once-unimaginable scenario: Sometime soon in an American courtroom, a criminal defense lawyer may argue that the prosecution of an MS-13 gang member is a politically motivated “witch hunt” built around a witness who has “flipped” and taken what the lawyer calls a plea deal of dubious legality.

He will be quoting the president of the United States.

That is potentially the gravest danger of President Trump’s sustained verbal assault on the country’s justice system, legal experts say. In his attempt at self-defense amid the swirl of legal cases and investigations involving himself, his aides and his associates, Mr. Trump is directly undermining the people and processes that are the foundation of the nation’s administration of justice.

The result is a president at war with the law.

“You are dealing with a potentially indelible smearing of our law enforcement institutions,” said Neal K. Katyal, who was acting solicitor general under President Barack Obama. “If Trump’s views were actually accepted, there would be thousands of criminals who are out on the streets right now.”

The president’s public judgments about the country’s top law enforcement agencies revolve largely around how their actions affect him personally — a vision that would recast the traditionally independent justice system as a guardian of the president and an attack dog against his adversaries. For more than a year, he has criticized the Justice Department, questioned the integrity of the prosecutors leading the Russia investigation, and mercilessly mocked Jeff Sessions, his own attorney general.

Mr. Trump continued that pattern on Twitter on Saturday morning, seizing on disputed reports in the conservative news media that the F.B.I. had ignored “thousands of Crooked Hillary Emails” and vowing to get “to the bottom of all of this corruption.”

“At some point I may have to get involved!” he warned.

But this past week’s stunning legal developments — a conviction for his former campaign manager, a guilty plea by a longtime lawyer for him who implicated Mr. Trump himself in illegal acts, and immunity agreements for two of his closest business associates — appear to have broadened the president’s hostility toward the legal system.

The most remarkable moment came when Mr. Trump attacked the very notion that prosecutors should try to “flip” witnesses by reaching plea agreements. In an interview on “Fox & Friends,” the president questioned that tool, which has long been considered lawful and essential for prosecutions.

“I have had many friends involved in this stuff,” Mr. Trump said. “It’s called flipping, and it almost ought to be illegal.”

Former prosecutors and defense lawyers said the president’s embrace of that notion — spread broadly by his bully pulpit and given a measure of validity by the office he holds — is likely to undermine trust in the justice system and weaken the government’s ability to win in court.

“How long will it take before a federal criminal defendant claims in court in front of a jury that the president of the United States rejects the legitimacy of cooperating witnesses and so too should jurors?” said Christopher Hunter, a former F.B.I. agent and prosecutor. “If only one juror agrees, a dangerous criminal could walk free.”

Mr. Trump’s often cynical view of the American legal system has been shaped by decades of courtroom clashes over his business decisions, his personal behavior and his aggressive pursuit of the presidency.

As a young developer in New York, he battled the Justice Department’s claims that he had violated the Fair Housing Act by discriminating against African-Americans. Later, the Securities and Exchange Commission accused him of financial reporting violations at his casinos.

The legal system was also the venue for infuriating and embarrassing battles with his former wives. But it has also offered tools with which to bludgeon his business adversaries or — as he is accused of doing during the 2016 presidential campaign — to bury unflattering stories.

As president, Mr. Trump is sworn to uphold the law, but he has viewed the legal system itself as an adversary, suggesting that it be circumvented to, for instance, send migrants back home.

As Robert S. Mueller III, the special counsel, has investigated his actions for more than a year, the president has waged a relentless campaign to diminish the Justice Department and the F.B.I. in the eyes of the public. After Michael D. Cohen, his longtime personal lawyer, pleaded guilty to campaign finance violations that he said had been directed by Mr. Trump, the president falsely claimed that the violations were not even a crime. And he has criticized federal courts as they have blocked much of his agenda, including his efforts to wield executive authority on immigration, voting and the environment.

George T. Conway III, a conservative Washington lawyer who is often critical of the president (and who is the husband of Kellyanne Conway, the president’s counselor), tweeted on Friday that “what everyone should want, and the country needs, is a ‘President’ capable of comprehending what it means to ‘take Care that the Laws be faithfully executed.’ Art. II, § 3.”

But Mr. Conway also offered a more hopeful observation, one that was echoed this past week by several constitutional and legal scholars: Many of the country’s law enforcement institutions seem to be standing up to Mr. Trump’s continued abuse — at least for now. As they always have, they are pursuing hundreds of cases across the country, even as the president is fixated on only one of them.

Asked on Twitter how the American government might react if a foreign leader showed the same disrespect for the rule of law, Mr. Conway said that “they might perceive that the system was so strong, its checks and balances so robust, that the ‘president’ is reduced to lamely tweeting insults at his attorney general, with no effect other than to continue to erode his own moral authority.”

The strength of the system was underscored on Tuesday, moments after Mr. Cohen pleaded guilty. Outside a courtroom in New York, Robert S. Khuzami, the deputy United States attorney, delivered a message that might have been directed squarely at the person in the Oval Office.

“That message is that the rule of law applies,” Mr. Khuzami said, standing in front of a phalanx of F.B.I. agents and federal prosecutors.

Paula Duncan, a firm supporter of Mr. Trump who served on the jury that convicted Mr. Manafort, made the same point in an interview on Saturday. Although she believes that Mr. Manafort was targeted because Mr. Mueller’s team hopes he is a steppingstone to Mr. Trump, she said, he was convicted because of “overwhelming” evidence.

She said it would be “a great mistake” if Mr. Trump pardoned Mr Manafort. If he does, “even his supporters will have questions, because it would send the message that it is O.K. to break the law,” she said. “No one is above the law, not even President Trump.”

Still, it is not clear how the president’s attack on the basic structures of the American legal system will reverberate among judges, lawyers, police officers, jurors and the public in the weeks and months ahead, said Leah Litman, a constitutional law professor at the University of California, Irvine.

It is possible, she said, that jurors will increasingly view prosecutors through the highly charged partisan lens that Mr. Trump repeatedly employs. If that happens, she said, trust in the system will erode.

“If people start to believe that all government prosecutions are politically tainted, or that you can just straight up lie or deny the facts, I don’t think that is a very stable arrangement for the system of laws to exist in,” Ms. Litman said.

The result, she said, would be “a general lack of concern for any compliance with the law, or adherence to basic norms of democratic legitimacy.”

And while the president has so far stopped short of firing Mr. Sessions or halting the inquiries that seem to be drawing nearer to him, his threats to “get involved” have only grown.

“No matter when this all ends, Trump will have caused long-lasting damage to the ability of the Justice Department and the F.B.I. to execute on its mission,” Mr. Hunter said. “He is sacrificing our public safety and national security on the altar of his own ego.”

By Michael D. Shear and Katie Benner @ NYTimes

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