The Justice Department Bends Over—Way Over—Backward to be Apolitical

The Justice Department Bends Over—Way Over—Backward to be Apolitical

Contrary to what is widely presumed, the Department of Justice and the FBI go to great pains to appear politically impartial, even at the cost of effectiveness in upholding the law.


A long and detailed Washington Post article about the work of the Department of Justice and FBI in investigating the insurrection at the Capitol on January 6, 2021 and related efforts to overturn the result of the 2020 presidential election shows officials being highly reluctant to include in any investigation the actions of Donald Trump, despite his key role in the events in question. An aversion to taking any action that could possibly be portrayed as having a political motivation left a major line of inquiry unexplored for about a year until the facts of the case left no choice but to perform what now constitutes the January 6 portion of Special Counsel Jack Smith’s investigation.

This picture is, of course, the opposite of what Trump’s defenders continue to assert is a political bias in the department that has made investigators and prosecutors eager to go after Trump and to single him out for disparate treatment. That assertion is being heard again this week on Capitol Hill, with Republicans inviting testimony from John Durham, who was given the job during Trump’s administration of trying to find a “political witch hunt” behind an earlier FBI investigation involving Trump’s relations with Russia and who failed to find any, being reduced to making criticisms about analytical rigor and the like. That failure was hardly surprising, given that the Department of Justice inspector general had already determined that the opening of the FBI’s investigation into the matter was justified, given what is in the public record about Trump’s relationship with the Russians along with important and still unanswered questions about that relationship.


The Post’s reporters evidently had well-placed sources inside the department. Their account is so detailed that the story tells itself in a way that would make it difficult to impart a spin to the narrative, even though it would be safe to assume that at least some of the sources were happy to have this reportage become public because it refutes the false accusations of investigations being politically biased.

Viewed from another angle, however, the account does not put the Department of Justice in an especially favorable light. Officials were so scared of being subjected to political criticism from pro-Trump elements that they dragged their feet in pursuing lines of inquiry that they probably should have pursued with alacrity. They viewed the politically safest way of investigating January 6 to be a “bottom-up” approach that gave priority to prosecuting individual rioters who attacked the Capitol. It was a small-fish approach that intentionally shoved aside any attention to big fish, notwithstanding evidence they already had of a more organized seditious conspiracy. It was not until Smith assumed his present duties that the scope and speed of the investigation reached levels that it would have reached months earlier were it not for the trepidation about a political backlash.

The principal consequence has been a delay in having open questions resolved and justice served. Whatever problems may arise from prosecutions bumping up against the 2024 political calendar are due less to any intentional bumping—by either pro-Trump or anti-Trump elements—than to timidity-based slowness within the department.

The pusillanimity in investigating Trump has given rise to a double standard of sorts in matters involving political candidates—but again, in a direction opposite from what Trump’s supporters allege. The Post article mentions an episode from the past that evidently weighed heavily on the minds of prosecutors and investigators: the announcement by then-director of the FBI James Comey, just eleven days before 2016 presidential election, that the bureau was re-opening an investigation into Hillary Clinton’s use of an email server—only to determine later that there still were insufficient grounds for bringing any criminal case. Critics charged, with good reason, that this election eve announcement probably contributed to Clinton’s defeat. Officials in the FBI and Department of Justice, faced with considering Trump’s role in events of 2020 and 2021, did not want to do anything that might have similar political repercussions, or might be perceived as having them. They overcompensated not only in avoiding any politically ill-timed announcements about investigations but in failing for months to investigate certain important matters at all.

In shying away from timely and vigorous investigation of anything involving Trump, the timorous officials not only delayed serving justice but did not avoid political brickbats from Trump’s supporters anyway. Trump’s party had been pushing hard the theme of a supposedly politicized law enforcement bureaucracy even before its more recent hostile reactions to the indictment of Trump regarding the Mar-a-Lago documents. It is difficult to imagine that the themes and reactions would have sounded any different if the officials in the department had conducted investigations with the speed and intensity they deserved. And even a carefully researched article in the Washington Post is unlikely to change the minds of ordinary supporters of Trump who have internalized those themes.

False claims about political bias affecting the work of law enforcement and security bureaucracies undoubtedly are partly just partisan rhetoric. But there probably is a genuine difficulty in understanding the mindset and professional ethic of the public servants who work in those bureaucracies. The people making the claims are political animals; those against whom they are making accusations are not. The latter self-selected into work in which apolitical performance of duties is part of the organization’s code of conduct. Refraining from partisan bias is part of their professional raison d’être.

Of course, people working in bureaucracies have personal political views, which they express in the privacy of the voting booth and possibly openly after they retire. But the resistance to letting any such views contaminate their performance of duty as long as they wear a badge in an organization such as the Department of Justice is strong and reflexive. I have seen the strength of that resistance first-hand in the intelligence community, where part of the organizational code of conduct is neutrality with respect not only to parties and candidates but also to policies. It is thus not surprising that many professionals within the department would strive to the point of excess to avoid doing anything that could possibly be construed as departing from neutrality.

The false accusations about bias have multiple costs. They are, in the first instance, slurs against honest people doing their jobs with dedication. They impede the full and proper functioning of something like a law enforcement agency in the current matters involving Trump. They create a constituency for possible moves that really would weaponize law enforcement and make the Department of Justice a political servant of whoever happens to occupy the White House.

Even if those advocating such destructive moves do not get the opportunity to make them, the false accusations encourage over the long term more of the sort of mission-impairing hesitancy that the Post article describes. The damaging falsehoods centered on Trump will lead investigators and prosecutors in the future—faced with cases involving other politicians well after Trump has left the scene—to be afraid to pursue a case vigorously to wherever the facts may lead.

Paul Pillar retired in 2005 from a twenty-eight-year career in the U.S. intelligence community, in which his last position was as a National Intelligence Officer for the Near East and South Asia. Earlier he served in a variety of analytical and managerial positions, including as chief of analytic units at the CIA covering portions of the Near East, the Persian Gulf, and South Asia. Professor Pillar also served in the National Intelligence Council as one of the original members of its Analytic Group. He is also a contributing editor for this publication.

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