Donald Trump conceives of justice as what happens when the law punishes his enemies and protects himself and his allies, and he has spent the last eight years urging his supporters to view investigations through that lens. The former president frequently denounces his critics as criminals, calls for their prosecutions, and claims that he and his cronies have done nothing wrong. When the justice system disagrees, he assails it as corrupt.
The pro-Trump media response to his Tuesday arraignment on federal criminal charges shows how thoroughly this narrative has infested their thinking. Right-wing pundits have excoriated the decision to prosecute Trump over mishandling government documents as politically motivated, and pointed to the lack of prosecutions for Hillary Clinton and Hunter Biden as evidence of a two-tiered justice system. And they’ve adopted Trump’s own view that the Justice Department should serve the will of the president by attributing to Joe Biden, without evidence, the special counsel’s decision to file charges against his predecessor.
It is true that federal investigations involving Trump and his cronies have repeatedly led to prosecutions, while probes of Clinton and Hunter Biden have dragged on or fizzled without charges. But what Trump’s propagandists ignore is that all of these investigations have involved oversight from one or more high-ranking Republicans — at times including those appointed by Trump; in several, key decisions were made while Trump was in office; and Democratic political appointees involved in the cases repeatedly acted to reduce any appearance of coercion.
Under the cover of critiquing the process of these investigations, the real complaint from Trump’s media allies is squarely over their results. In their view, by definition, if probes lead to charges against Trump but not his opponents, they must be unjust.
Fox anchor Martha MacCallum provided a case study in this motivated reasoning during a fiery back-and-forth with contributor Juan Williams shortly after Trump pleaded not guilty on Tuesday. She rejected Williams’ effort to distinguish between the Trump documents probe, which resulted in an indictment, and the probe of Clinton’s use of a private server, which did not. And then she suggested that Americans are right to think that only political partisanship explains such decisions.
“You seem to be able to just say, ‘Oh, everybody did what they were supposed to do there,’ but the problem is that half the country sees investigations as either politically sunk or politically elevated depending on the winds that happen to be backing them,” MacCallum said. “So you might have confidence that those cases were investigated clearly. A lot of Americans don't have that confidence. They see, my goodness, so how could it take five years to investigate Hunter Biden's taxes and what's on a laptop? Can you explain that to me? What is taking five years, Juan, if it isn't back-burnered?”
Such sentiments are everywhere on the right. The Daily Wire’s Ben Shapiro went so far as to call for a completely unworkable system in which the Justice Department explicitly and deliberately only prosecutes members of the president’s party, saying, “The only way that you actually restore the credibility of the justice system is to have Republicans prosecute Republicans and Democrats prosecute Democrats."
A Fox chyron that night referring to Joe Biden read, “Wannabe dictator speaks at the White House after having his political rival arrested” — dangerously inflammatory language which suggests that Trump’s prosecution can only be explained as the president’s doing.
But the federal investigations of Trump, Clinton, and Hunter Biden actually show something very different from the right’s overwrought claims that Democrats are prosecuting Republicans while letting Democrats off the hook. In fact, those cases show that when Republicans and Trump appointees investigate Republicans the probes have led to criminal charges, and when Republicans and Trump appointees investigate Democrats they have not. And when Democrats held the presidency during such investigations, the party’s leaders and political appointees bent over backward to avoid impropriety.
Trump documents probe: Launched under Republican FBI director appointed by Trump, prosecuted by independent special counsel. The FBI opened its investigation of Trump’s handling of government documents in March 2022 under the leadership of Director Christopher Wray, a Republican appointed to that post by Trump who had previously served as a political appointee in the Justice Department during the presidency of George W. Bush. After Trump declared his candidacy for president, Attorney General Merrick Garland appointed Jack Smith, a political independent who had prosecuted politicians of both parties as head of the Justice Department’s political corruption unit, to oversee the case as special counsel, walling it off from political pressure. President Biden reportedly found out Smith had filed charges through news reports and has ordered the Democratic National Committee and his reelection campaign not to mention Trump’s prosecution.
Hunter Biden probe: Launched under Trump-appointed Republicans, currently overseen by a Trump-appointed Republican. MacCallum complained that the federal probe of Hunter Biden’s business dealings has gone five years without reaching a conclusion and suggested partisanship explains the delay — but the bulk of that time was during the Trump administration. The probe launched in 2018, when the FBI was headed by Wray and the Justice Department by the Trump-appointed Republican Jeff Sessions, and continued through the tenure of the Trump-appointed Republican Attorney General William Barr. After Joe Biden’s election, he retained David Weiss, the Republican prosecutor overseeing the probe, as U.S. attorney in Delaware rather than replacing him as he did most of Trump’s appointees.
Clinton email server probe: Launched and closed without charges under Republican FBI director. The FBI, headed at the time by Director James Comey, a Republican, opened an investigation in 2015 into Clinton’s use of a private email server as secretary of state. After Loretta Lynch, the Obama-appointed attorney general, publicly said she would accept the FBI’s recommendations as to whether to prosecute the case, Comey recommended no charges, saying, “Our judgment is that no reasonable prosecutor would bring such a case.” That judgment was apparently ratified by the Trump-appointed FBI and Justice Department leadership, which did not reopen the case and charge Clinton.
Clinton Foundation probe: Launched under Republican FBI director, closed without charges at end of Trump administration. Under Comey and fellow Republican Deputy Director Andrew McCabe, the FBI opened an investigation in 2016 into the Clinton Foundation’s dealings with foreign donors during Clinton’s tenure as secretary of state. The probe continued through the Trump administration under his political appointees at the FBI and Justice Department, “long past when F.B.I. agents and prosecutors knew it was a dead end,” and was ultimately closed without charges in the final days of his administration.
Clinton Uranium One probe: Trump-appointed Republican AG assigned case to Trump-appointed U.S. attorney who investigated and closed the case without charges. Sessions selected John Huber, a U.S. attorney appointed by Trump, to investigate Clinton’s purportedly criminal role in the U.S. government's decision not to block the sale of the company known as Uranium One. After a two-year probe, Huber concluded his work without recommending any criminal charges.
Trump Russia probe: Launched under Republican FBI director, prosecuted by Republican special counsel selected by Republican Trump appointee. The Comey/McCabe FBI opened the investigation into Russia’s interference in the 2016 election and the efforts by Trump associates to aid that interference. After Trump fired Comey, citing his handling of the probe, Rod Rosenstein, the Trump-appointed Republican serving as deputy attorney general, appointed Robert Mueller as a special counsel overseeing the case. Mueller, a Republican, had served as a political appointee in the Justice Department of President George H.W. Bush and was appointed FBI director by President George W. Bush. Mueller successfully prosecuted several top Trump aides and developed substantial evidence of obstruction by Trump.
The throughline of these cases is that federal prosecutors — even Republican ones — don’t find either the right-wing media’s conspiracy theories about Democratic criminality or their furious declarations of Republican innocence to be legally compelling arguments.
When the results of those probes don’t match Trump’s expectations, he denounces Republicans like Comey, McCabe, Wray, and Mueller — and Fox and the rest of the right-wing press follows his lead.
And so Republicans end up declaring that the FBI, long a conservative bastion, needs to be shut down because the results of its investigations don’t match the political expectations of Trump and his propagandists.
Reprinted with permission from Media Matters.
