Bondi’s illegal order exacerbates the crisis in D.C. and teaches the wrong lessons
In Trump's Justice Department, power, not the rule of law, is all that matters.
What is happening in Washington, D.C., should alarm every American. The Founders of this country imagined that the federal government would play a small and secondary role, backstopping state and local government and carrying out functions (such as negotiating with foreign powers) that they could not.
The sight of the National Guard and Drug Enforcement, Immigration and Customs Enforcement, and other federal law enforcement agents on the streets of the nation’s capital would have shocked and horrified the Founders. They would have instantly recognized it as the behavior of a tyrannical king, not the elected leader of a constitutional republic.
The Intercept quoted Joseph Nunn, an attorney with the Brennan Center for Justice, who correctly observed that the willingness of the Trump administration to assert its “authority—the ability to use the military anywhere, anytime, for any purpose—it’s absolutely unprecedented…. The last person to assert that sort of boundless authority to deploy the military domestically and use it for law enforcement in this country was King George.”
But as bad as the deployment of federal forces in the District of Columbia is, what Attorney General Pam Bondi did yesterday, Aug. 14, made things much worse. She issued an order appointing Terry Cole, the head of the Drug Enforcement Administration, as the “emergency police commissioner,” with “all the powers and duties” invested in the city’s police chief, Pamela Smith.
That means that Smith must now report to Cole and get his approval before issuing any orders or new policies.
Alas, the order is clearly illegal. But that didn't seem to matter to the AG.
Before looking more closely at the order and explaining why it is illegal, let me say a word about the special role played by the AG in helping the president discharge his duty to faithfully execute the law.
Despite its contemporary importance, the office of attorney general is not mentioned in the Constitution. It was created when the First Congress passed the Judiciary Act of 1789. The Department of Justice itself did not exist prior to 1870.
The Judiciary Act called for the appointment of a person “learned in the law, to act as attorney general for the United States.” It said that the attorney general’s duty “shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments.”
Over the course of America’s history, attorneys general have had a political role as a member of the president’s Cabinet, but, more importantly, have played a crucial role in upholding the rule of law.
Fifty years ago, then-Attorney General Edward Levi explained the responsibilities of his office this way. “A large part of that mission involves the reinforcement of public confidence in the administration of justice. Probably more than any other attribute, the quality of our administration of justice tells us the kind of country we now have and will have in the future. The fair application of law is a pledge to the future, as it is also a guardian of our present rights and liberties.”
The attorney general, Levi said, must make clear in all their actions that “we … live under the rule of law, and that the rule of law does work.” To do this, the Justice Department must “make clear that it is not to be used—and will not use itself—for partisan political purposes.”
Seems quaint in the era in which we now live.
Just how quaint was illustrated by Bondi’s further intervention in the federal takeover of D.C. Her order, entitled “Restoring Safety and Security to the District of Columbia,” restates some of the Trump administration’s erroneous talking points.
As Bondi put it, “Notwithstanding false media narratives and apparent efforts by some district employees to manipulate crime statistics, the danger posed by violent crime in the District is plain for all to see…. These dangers are multiplied by the District's sanctuary city policies, which actively shield criminal aliens from the consequences required by federal law.”
Ignoring the facts, Bondi claimed that “illegal aliens” present “extreme public safety and national security risks to our country.”
The attorney general then cited section 740(a) of the District of Columbia Home Rule Act as authority for her actions. Seems simple enough, but section 740(a) says nothing of that kind.
Its language is clear.
“Notwithstanding any other provision of law, whenever the President of the United States determines that special conditions of an emergency nature exist which require the use of the Metropolitan Police force for Federal purposes, he may direct the Mayor to provide him, and the Mayor shall provide, such services of the Metropolitan Police force as the President may deem necessary and appropriate.”
As D.C. Attorney General Brian Schwab explained in a lawsuit filed today, the morning after Bondi’s order, “By its terms, Section 740 only permits the President to require the Mayor to ‘provide services’ of MPD for ‘federal purposes.’… It does not permit the President to seize control of MPD. Nor does it authorize the President to direct MPD in the policing of local crime. Congress left that responsibility to local leaders.”
Moreover, Bondi’s order “purports to suspend MPD policies that Defendant Bondi dislikes, impose enforcement policies she favors, and rescind any existing orders that stand in the way. In short, it attempts to divest the District and its residents of any control of their local police force and place it, for all purposes, under the control of the federal government.”
Schwab pointed out that “The Bondi Order directly interferes with and directs policies and enforcement related to purely local matters. The Order displaces the local Chief of Police … (and) directs enforcement of a local statute governing public disturbances on local lands.”
The entire structure of the statute, he concluded, “reflects Congress’s judgment that control over local affairs should be left to the people of the District—not seized by the President based on his disagreements with local law enforcement policy. “
Respecting Congress’s judgments, or the words of the laws it writes, has not been a hallmark of the current administration. But for the rule of law to work, the language of law must work.
Legal officials must respect language itself.
In Bondi’s Justice Department, that respect is glaringly absent. This is a disaster for the department, the District of Columbia, and for all of America.
What Supreme Court Justice Louis Brandeis wrote a century ago explains why. “Our government,” he said, “is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example."
The lesson Bondi wants to teach is that in Trump’s world, power, not law, governs—even in the Department of Justice.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
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There is nowhere in the Felon's administration where the rule of law takes precedence over power.
With the full support of the six Christian Nationalists on the Supreme Court and GOP Congressional members the Felon is making the United States an authoritarian theocracy, with the Felon as its leader and the American oligarchs running the Country (Putin's Russia).
We can only hope the judge who will be ruling in this case doesn’t allow what the AG is doing. If they don’t comply with the judge’s order then there should be consequences to being insubordinate to the law and the court.