The Independence and Impartiality of the Department of Justice is Threatened by Partisan Politics

At least since Watergate, the Department of Justice has taken steps to insulate its decisions in criminal cases from the White House, members of Congress, and other partisan political considerations. Those steps included strict limitations on communications between the Department at all levels and the White House and a multi-layered practice for selecting United States Attorneys that involved a selection process driven by Senators in the state, vetting by career Department leaders, and a robust but fair confirmation process. In addition, Department policy, as reflected in the Justice Manual and in other policies and norms that have been largely followed for decades, created actual and perceived separation between the political goals of the White House and the role of the Department to administer the criminal laws fairly and to do justice. The recent indictment of former FBI Director James Comey and the threatened prosecution of other so-called political opponents of the President, erases this independence and ushers in a new and frightening era where prosecutors respond to the President’s call for indictments of specific individuals at the risk of losing their jobs.

Indictment of James Comey

Over the past several weeks, public reporting disclosed that career prosecutors in the Eastern District of Virginia recommended against charging James Comey in connection with his testimony before the Senate Judiciary Committee on September 30, 2020. The office also reportedly concluded that there is insufficient evidence to charge Letitia James, the New York Attorney General, with mortgage fraud. The then acting U.S. Attorney, Erik Siebert appears to have supported these decisions and recommendations against prosecuting Comey and James. Similarly, Attorney General Pam Bondi and Deputy Attorney General Todd Blanche are reported to have agreed with the recommendations against indictments (Attorney General Bondi has since denied these reports).

A long-time employee of the office, Mr. Siebert was elevated to acting U.S. Attorney by President Trump and subsequently nominated to be U.S. Attorney by the President. This did not stop the President from seeking his removal as acting U.S. Attorney. In response to this pressure, Mr. Siebert resigned on September 19 (the President later claimed to have fired Siebert).

On Saturday, September 20, the President wrote on social media “Nothing is being done. What about Comey, Adam ‘Shifty’ Schiff, and Leticia???” He went on to write, “We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!”

That same day, the President announced he would install one of his personal attorneys, Lindsay Halligan, as the acting U.S. Attorney. She has no experience as a prosecutor and has appeared in federal court fewer than ten times total in any capacity. Nevertheless, she began acting as the U.S. Attorney on September 22.

By Thursday, September 25, Halligan herself presented a three-count indictment to the grand jury charging Comey with false statements and obstruction. The grand jury rejected one of the counts but did return a two-count indictment charging Comey with making a false statement to Congress and obstructing a congressional proceeding. Even this decision of the grand jury was far from compelling, barely clearing a majority vote of the grand jurors who heard the testimony.

These developments demonstrate a concerning erosion of the rule of law at the Department of Justice.

Traditionally, Decisions In Criminal Cases were Independent from Political Interference

The Department of Justice and the United States Attorneys’ Offices have a long history of insulating criminal prosecutions from political interference. These policies were meant to enforce Attorney General Griffin Bell’s admonition that “neither favor nor pressure nor politics is permitted to influence the administration of the law” and “to establish firmly the tradition that the Attorney General and the lawyers under him must be free from outside interference in reaching professional judgments on legal matters.” “An Address by the Honorable Griffin B. Bell, Attorney General of the United States, Before Department of Justice Lawyers,” September 6, 1978. https://www.justice.gov/sites/default/files/ag/legacy/2011/08/23/09-06-1978b.pdf.

The Justice Manual makes this separation explicit, stating that the “legal judgments of the Department of Justice must be impartial and insulated from political influence. It is imperative that the Department’s investigatory and prosecutorial powers be exercised free from partisan consideration. It is a fundamental duty of every employee of the Department to ensure that these principles are upheld in all of the Department’s legal endeavors.” Justice Manual, 1-8.100. This directive has been reinforced by recent Attorney Generals through limits on communications between the Department and the White House.

Similarly, the White House generally instructs its employees to refrain from contacts with the Department. For example, President Trump’s White House Counsel, Donald F. McGahn II, issued a memo to all White House staff outlining the restrictions on communications with the employees at the Department. “Memorandum to All White House Staff,” from Donald F. McGahn II, The White House, Washington, DC, January 27, 2017. https://www.politico.com/f/?id=0000015a-dde8-d23c-a7ff-dfef4d530000. In that memo, he wrote

This Memorandum outlines important rules and procedures regarding communications between the White House (including all components of the Executive Office of the President) and the Department of Justice. These rules exist to ensure both efficient execution of the Administration’s policies and the highest level of integrity with respect to civil or criminal enforcement proceedings handled by DOJ. In order to ensure that DOJ exercises its investigatory and prosecutorial functions free from the fact or appearance of improper political influence, these rules must be strictly followed. (emphasis in original)

This guidance is consistent with the American Bar Association’s standards regarding prosecution, which state that a “prosecutor should not use other improper considerations, such as partisan or political or personal considerations, in exercising prosecutorial discretion.” Criminal Justice Standards for the Prosecution Function, 3-1.6(a).

Political Interference in Criminal Cases Erodes the Rule of Law

We have now reached a point where these restrictions are openly ignored, and the President directs criminal investigations and indictments through his social media posts. The President injected his personal animus into what should be a thoughtful and detached decision and demanded that the Department indict Comey over the objections of the career prosecutors handling the case and an experienced, highly respected leader of the United States Attorney’s office.

These actions resulted in the resignation of the U.S. Attorney, a long-term Department employee. The President then inserted his personal lawyer, an attorney with no prosecutorial experience, as the new acting U.S. Attorney.

Less than a week after taking office, Halligan appeared before the grand jury, with an indictment signed only by her. That no Assistant U.S. Attorney is identified on the indictment speaks volumes. It is virtually unheard of for a U.S. Attorney to be the only attorney whose signature appears on an indictment.

These circumstances raise significant questions about the prosecution. As the Second Circuit has held, a court can dismiss an indictment for vindictive prosecution where “(1) the prosecutor harbored genuine animus toward the defendant, or was prevailed upon to bring the charges by another with animus such that the prosecutor could be considered a ‘stalking horse,’ and (2) he would not have been prosecuted except for the animus.” United States v. Koh, 199 F.3d 632, 640 (2d Cir. 1999). The President’s public statements, in combination with the recommendations from career prosecutors at the Department against bringing the indictment may meet this demanding standard. But whether or not the Comey indictment stands, the lasting pernicious impact of the selective and disturbing use of the power of the Presidency in partnership with the Department of Justice against the political enemies of the President remains.

It has long been said that a good reputation is earned over years of hard work, but that it can be lost in a moment. The Department of Justice has a well-deserved reputation for honor, truthfulness, and its commitment to the rule of law. That reputation has been severely undercut by the use of the Department to retaliate against political enemies of the President. All citizens should be concerned about these developments.