The DoJ Is Bad, And Will Get Worse (Update)

There are few things I care less to do than defend the career prosecutors at the Department of Justice, whether Main Justice or the lawyers who staff United States Attorneys offices across the country. In his essay, “The Federal Prosecutor,” Robert H. Jackson, then Solicitor General and later Supreme Court justice, asserted that the duty of the federal prosecutor is to “do justice.” As my pal Bennett responded on twitter, that was always bullshit, and I can’t disagree.

But as much as I’ve spent a career fighting against what federal prosecutors call “justice,” what they were not, with notable exceptions, were unfaithful to the law. The DoJ was independent of the executive branch, and while the emphasis of its prosecutions shifted somewhat with regime change, say from drugs to white collar, from environmental to discrimination, what it was not was the legal arm of the presidency, focusing its power against the individuals and entities as commanded by an offended individual to vindicate that person’s “retribution.”

Before going further, there will be some who argue that this already happened when FBI agents raided Mar-a-Lago. This is nonsense, of course, the raid coming only after numerous requests for the return of classified documents, lies that everything had been returned, deliberate concealment, revealing secret documents for kicks and, ultimately, a warrant issued. But I digress.

Will the future of the Department of Justice, bad as it was before, get better or worse?

The idiot’s reply was that Clinton fired all 93 United States Attorneys, for cleaning house at the DoJ is totally normal. United States Attorneys, of course, are political appointees. Career DoJ attorneys are civil service employees, and there are more than 10,000 of them, not just 93. there is nothing about this that is “normal.” Much as I have no love of them, per se, what are the chances that Trump remaking the DoJ to serve him and his agenda will improve anything?

There will be no shortage of people who will respond that The People voted for change, and so this is the will of the people. There will be others who argue that the old “normal” was bad, and so who cares if this isn’t normal. And, indeed, it may well be that it’s time for the current normal to come to an end and for a new normal to prevail. But is a Department of Justice that serves the whims of a vindictive president the right version of the new normal?

The alternative to bad isn’t necessarily good. It can always get worse.

Long ago, the hallways of federal courthouses were largely pristine, unsullied by the scent of criminal defense lawyers and their clients. Criminal prosecutions were primarily the territory of state prosecutors, and only in the rare instance, and for the most heinous of crimes that was of national significance, did the prosecution taint the wood paneled courtrooms and marble hallways. This was before people in Washington realized they could make political hay by strutting around promising to solve pedestrian crime and make the country safe by punishing every criminal with life plus cancer. Would a return to those days be a huge improvement? I think so.

But the criminal legal system politicized is far worse than what it will be should Trump require that career prosecutors bend the knee to him if they want to keep their jobs. Even if you believe that the independent counsel (emphasis on independent) was a machination of politics, if it was wrong when applied to Trump, it’s just as wrong when done by Trump. And if you’re of the view that if “they” did it, so should you, then it’s time to grow up.

Twisting the criminal law for the sake of exacting retribution against political enemies is not the new normal you think it is. If the DoJ is bad now, this bastardization of its purpose takes it further away from Jackson’s “do justice” to exact revenge. Bennett was right that doing justice was never really the guiding principle of the career prosecutors, for whom scoring convictions was all that mattered. But that doesn’t mean it should remain the aspiration of the DoJ, and that efforts to change the old “normal” to a new one should move it from bad to worse.

The apparatus of the Department of Justice should not be used to attack and prosecute the president’s enemies. Not when the administration is Biden’s, nor when it’s Trump’s. No matter how much you may dislike the DoJ now, this will be worse.

Update: Trump has just announced that he will nominate Congressman Matt Gaetz as Attorney General. May god have mercy on our souls.

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5 thoughts on “The DoJ Is Bad, And Will Get Worse (Update)”

  1. Hunting Guy

    The cry goes out throughout the land, “The sky is falling, the sky is falling!”

    No it isn’t.

    The DOJ and other federal bureaucracies are vast and filled with people that really carry the water for the operation. Even if you fired all the GS-13s and above, you still have the mass of minions and there are enough anti-Trumpers to stymie the things Trump wants. But most of the worker drones believe in the mission and don’t want to politicize the departments. ( At least I hope so.)

    Besides, many of his proposals need Congressional work before he can implement them. Given the way so many in Congress hate him, they will block anything he tries to do just to spite him, especially protections for upper level civil servants.

    One thing I hope he does is fire the “woke” generals and rebuild the fighting forces. However, at this point all the generals are political animals and I doubt there’s a real warrior in the bunch.

    So, from my POV, all this weeping and wailing and blue bracelets and 4B stuff is a waste of time. I suspect that he will go after real crimes the Bidens committed, or maybe not. Hillary should have gone to jail for the way she handled classified documents but he didn’t go after her so maybe Joe will get a pass.

  2. B. McLeod

    Well, prosecutions won’t be successful unless there is evidence that the defendants violated criminal laws, so there’s that. And, as Michael Avenatti found out, self-promotion as “anti-Trump” does not empower anyone to violate criminal laws with impunity. Even Biden knows that “no one is above the law.” Presumably Trump’s enemies have understood the need to be appropriately careful in this regard.

  4. Pedantic Grammar Police

    You may be assuming too much about Trump’s agenda. Maybe his agenda is to return the DOJ to the good old days when it didn’t prosecute people based on political ideology. This corruption started with Obama, and it isn’t confined to the DOJ. For example, the IRS was used to target conservative nonprofits.

    I hope and expect that Trump will set a good example for future presidents by prohibiting the use of government resources to punish people (or organizations) for their political beliefs or activity. Even if he doesn’t do that, firing everyone who participated in targeting conservatives for political reasons would be a good start.

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