Amid last week’s controversy over the Trump administration’s misleading report on terrorism and immigration, some Department of Justice (DOJ) veterans were deeply troubled by something else: A Justice Department lawyer was once again briefing reporters from behind the podium in the White House press briefing room.
The appearance by Ed O’Callaghan, a principal deputy assistant attorney general for national security, and a former member of the Trump transition team, was at least the third time under the Trump administration that a relatively obscure DOJ political appointee has briefed reporters from the White House podium on an issue touching on illegal immigration, perhaps the hottest-button political topic of our time.
During the Obama and George W. Bush administrations, no Justice Department official aside from the attorney general briefed reporters from the White House podium, according to a search of a database of White House press briefings maintained by the University of California, Santa Barbara. The three times an attorney general did appear before press from the White House were on 9/11/2001 and twice more in the six weeks following.
Former Justice Department officials say those appearances at the White House are so rare because past administrations have rightly been wary of being seen to put Justice Department staff — as opposed to the attorney general him or herself, who is more clearly associated with the administration — in the service of the president’s political agenda.
“I don’t recall that ever happening [under Obama],” said Vanita Gupta, who served as assistant attorney general for the Civil Rights Division of the DOJ under President Obama, and is now the CEO of the Leadership Conference on Human and Civil Rights. “Nobody is above the law in this country, and if the Justice Department appears to be operating on behalf of the president, those are benchmarks of authoritarian regimes.”
Some say having DOJ lawyers essentially speaking for the White House can damage both institutions.
“When you have a DOJ official coming to the White House podium — not the AG, the [Deputy Attorney General] or the [Associate Attorney General] — it gives the appearance of the White House directing their activities even if they’re not directing their activities,” Rudy Mehrbani, the director of the Obama White House’s Presidential Personnel Office — now at NYU’s Brennan Center for Justice — told TPM.
Trump is already facing accusations that he has inappropriately politicized the DOJ: After public pressure from the president, the department has reportedly reopened two inquiries into Hillary Clinton’s behavior, both closed in 2016. Trump and Attorney General Jeff Sessions reportedly pressured FBI director Christopher Wray to fire deputy director Andrew McCabe.
In June, John Huber, the U. S. Attorney for Utah, spoke from the White House podium about the dangers of so-called “sanctuary cities,” and in favor of a bill mandating harsh penalties for undocumented immigrants. “This pending legislation — ‘Kate’s Law’ and the ‘No Sanctuary for Criminals Act’ — advance the ball for law enforcement in keeping our communities safe,” Huber said. Huber was appointed to his job by President Obama in 2015, but resigned in March; Trump immediately reappointed him.
The following month, Rob Hur, at the time a Principal Associate Deputy Attorney General, joined Thomas Homan, acting director of Immigration and Customs Enforcement, to brief reporters on the administration’s anti-gang efforts, focusing heavily on on MS-13, which has origins in Los Angeles, though many of its members are Salvadoran. The presentation featured a picture of the face of an immigrant accused of a crime, Politico pointed out.
Hur has since been appointed U.S. attorney for Maryland.
Then came last week’s appearance by O’Callaghan, which aimed to promote a deeply flawed DOJ-DHS report prevalence of foreign-born people among those convicted in the U.S. of international terrorism. Trump appointed O’Callaghan to the National Security Division in November.
A Justice Department spokesman pointed TPM to two examples, both from 1998, of DOJ officials of similar rank appearing before press at the White House under President Bill Clinton. And TPM found other examples from the database from the Clinton years.
But none of those involved topics that were anything like as politically charged as immigration is today, or similarly appeared to be putting DOJ personnel in the service of the administration’s contested political agenda. Of the two cases flagged by the DOJ spokesman, one involved John Bentivoglio, a special counsel for health care fraud, speaking about the administration’s efforts on that issue. In the other, Deputy Assistant Attorney General Mark Richard joined several administration officials in discussing international crime-control efforts.
William Yeomans, a lecturer at Columbia University and a 24-year career veteran of the DOJ, primarily in the Civil Rights division, says that political appointees are supposed to be doing exactly the opposite of bear-hugging the administration.
“One of the traditions in the Department of Justice is to protect career people and line people, the people who do the actual work and engage in litigation, because we don’t want them to be looking over their shoulders thinking, ‘If I indict this person or file this lawsuit, am I going to be called up to testify before Congress?'” Yeomans explained. “The political appointees have traditionally been the buffer between political people and career people.”
Another former DOJ official, who asked not to be named, said the practice of using DOJ officials to brief the press suggests the administration has no problem using government lawyers to advance its agenda.
“I think we’re past the point of the administration not knowing where the boundaries are,” said one, who asked not to be named. “By this point it seems like the administration knows where they are and it doesn’t care.”
This post has been updated.