During the administration of President Warren G. Harding – until recently generally regarded as the most corrupt presidential administration in modern times – the attorney general was a thoroughly amoral political hack. His name was Harry Daugherty.
Daugherty was a small-time Ohio politician, never particularly successful in his own political life, but skilled at picking his friends and doubly skilled at using his position to advance his own interests. Daugherty became a bosom pal and personal lawyer of then-Senator Harding, helped engineer Harding’s surprising nomination as the Republican presidential candidate in 1920 and then managed a successful national campaign. As a reward, and because Harding was a singularly bad judge of character, Daugherty became attorney general.
There was some grumbling, even from Republicans, when Daugherty populated the U.S. Justice Department with a collection of cronies and grifters from Ohio. The press dubbed them “the Ohio gang,” and for a few years these shysters ran a series of scams to enrich themselves. (Meanwhile over at the Interior Department a corrupt cabinet member was selling government oil leases in order to enrich himself. Some remember that as “the Teapot Dome scandal.”)
Daugherty’s Ohio gang sold permits allowing exemptions from prohibition laws. They violated a law that governed the screening of prize fight films. They ran a racket to profit from property that had been confiscated from enemy aliens during World War I. And they went after their political enemies.
In 1924 – Harding died in 1923 and Calvin Coolidge became president – Daugherty’s corruption was openly flouted in Washington and a handful of senators, including Idaho’s William E. Borah, demanded an investigation. Imagine that: A Republican senator demanding an investigation of a Republican administration.
The leadership of the Senate’s investigation fell to a junior senator from Montana, a Democrat by the name of Burton K. Wheeler. Wheeler had been a righteous U.S. attorney before winning a Senate election in 1922. He insisted that the Justice Department had been corrupted and campaigned on launching an investigation.
Upon learning that Wheeler intended to call witnesses and probe alleged improprieties, Daugherty struck. FBI agents were dispatched to Montana to dig up dirt on Wheeler, the Republican National Committee sent its own investigators for the same purpose and a compliant U.S. attorney convened a grand jury to hear “evidence” of Wheeler’s own alleged corruption. The evidence produced was misrepresented or entirely manufactured, but Wheeler was nevertheless framed, indicted and labeled a crook by the very people he was seeking to hold to account.
Wheeler was eventually exonerated by a Montana jury and a Senate investigation led by Borah concluded that he had done nothing improper. Daugherty was ultimately forced to resign as attorney general – Borah again led the charge – and he evaded conviction on corruption charges when one of twelve jurors of held out against a guilty verdict.
A senior justice department official who witnessed the entire sordid affair later said that Daugherty purposely set out, using political appointees loyal to him, to bring an indictment against a United States senator before that senator could expose Daugherty’s own corruption.
The episode – improper use of the FBI, political intimidation, trumped up charges, politicization of the Justice Department, corrupt activity by an attorney general – stands as one of the worst examples in American political history of the department of the federal government charged with upholding the law doing precisely the opposite. The stench lasted for years.
Harry Daugherty is hardly alone in paving a trail of personal and organizational corruption at the Justice Department. Richard Nixon’s one-time attorney general John Mitchell, as another example, was convicted for his role in the Watergate affair and Mitchell’s tenure at the Justice Department was marked by profound politicization of the department. There were howls of Republican protest when Barack Obama’s attorney general held a highly questionable conversation with Bill Clinton during the 2016 campaign, while his wife activities were under investigation.
Yet, not since John Mitchell, or even since Harry Daugherty have we seen the extraordinary level of Justice Department political game playing that we now see daily under Trump attorney general William Barr. And what makes Barr’s tenure so remarkable is that the political perversion of his department is happening in plain sight, driven by a vindictive president who now clearly believes there are no limits to his actions.
“Congratulations to Attorney General Bill Barr for taking charge of a case that was totally out of control,” Trump Tweeted this week when the Justice Department changed course dramatically and in unprecedented fashion overruled federal prosecutors in a case involving Trump pal Roger Stone, the self-proclaimed Nixon-era sleaze merchant and dirty trickster. Stone, of course, was convicted of seven felonies, including witness intimidation and lying to Congress for his role in facilitating Russian interference in the 2016 election. Essentially the president is interceding with his attorney general to help a guy who lied for him.
Four career prosecutors resigned from the case in protest, with one leaving the department entirely. Trump subsequently attacked the prosecutors and the federal judge who is scheduled to sentence Stone this month. Meanwhile, the president has encouraged discipline against the decorated officer who provided damaging testimony about Trump’s Ukrainian shakedown and the attorney general has moved out federal prosecutors who haven’t been sufficiently political subservient for his taste.
Trump has so wildy succeeded – now with Barr’s help – in destroying the norms of presidential conduct that this kind of abnormal behavior seems to many to be OK. “What normalization does,” says Jason Stanley, author of a frightening little book called How Fascism Works, “is to transform the morally extraordinary into the ordinary. It makes us able to tolerate what was once intolerable by making it seem as if this is the way things have always been.”
“What if a regime, for example, used a dismal us-versus-them divide in national politics to destroy faith in institutions capable of containing its power – elections, an independent judiciary, the public forum – thereby eliminating checks on its own self-enriching schemes?” – From The Guardian’s review of “How Fascism Works.”
But it is not the way things have always been or should be. And a toleration of the intolerable is deadly to democracy. As Harry Daugherty’s biographer wrote of another corrupt attorney general, he “belongs to that large and growing number of American leaders who, in sacrificing principle to personal gain, have failed the American people.” That is already being said of Barr.
Trump is unchained now. He’ll certainly pardon Stone and others convicted of serious crimes and who have covered for him. The extremely partisan politicians – Republicans like Idaho’s Jim Risch and Mike Crapo, for instance – who sanction this intolerable behavior may not believe it, but they are quietly and effectively serving as grave diggers for the fragile American experiment in democracy.
That the president and his enablers have assaulted a broad array of democratic norms is a feature of the last three years. It got worse – much worse – this week.