Retired Judge Nancy Gertner and Joel Cohen raise the alarm about the potential shift in the 94 United States Attorneys offices across the country from independent entities to weapons of partisan retribution.
President-elect Trump recently threatened to lock up political foes, like Liz Cheney, as well as members of Congress who investigated his role in the Jan. 6 attack. “For what they did,” he said, “honestly, they should go to jail.”
On the campaign trail, Mr. Trump said repeatedly that he would encourage the Justice Department and the F.B.I. to go after his enemies. His picks for attorney general (Pam Bondi) and F.B.I. director (Kash Patel) have echoed these remarks. Mr. Patel even compiled an enemies list, which includes Christopher Wray and retired Gen. Mark Milley.
Before anyone goes full “tu quoque” on me and forces me to wear out the trash button, there is no denying that Trump has been pretty clear about his position, though he claims that he won’t direct it, but if prosecutors choose to take the path they know Trump adores, well…
Each United States attorney will have been appointed by Mr. Trump and will be subject to his whim — meaning their potential firing if he does not approve of their performance.
Historically, the various US Attorneys offices have been viewed as apolitical, and that AUSAs (not to mention federal agents) are generally honest, trustworthy and the good guys. This was an argument Judge Kopf and I had often, as there has long been an abiding trust that prosecutors were trustworthy.
While neither federal prosecutors nor agents are deemed quite as pristine as they were before the video and DNA days, it remains the default view on the federal bench. And that means they generally get what they want. As far as judges were concerned, prosecutors were the guardrails.
Suppose a federal district judge is asked to sign off on an eavesdropping warrant under Title III of the federal criminal law. He or she will receive one-sided (“ex parte”) submissions from prosecutors applying for search warrants (for a physical search or a wiretap), an application that the target’s attorney will not know about nor have the ability to contest.
In previous administrations, federal trial judges have had generally well-founded confidence that the Justice Department and the post-Hoover F.B.I., under presidents from either party, have not been employed to attack political enemies. Most district judges — especially those who have served as federal prosecutors, as most have — believe that the prosecutors appearing before them act with integrity, that their offices are not being manipulated to undermine those who challenged the current administration or its leader.
But now that Trump and his putative appointees are openly declaring that they plan to use the legal system to exact revenge on political enemies, who will stop them? Judge Gertner and Cohen call upon the federal judiciary to rise to the task.
If a defendant in a political case raises legitimate concerns about the integrity of a case in Mr. Trump’s second term, federal judges can’t bury their heads in the sand and ignore the attorney general’s clear intentions or those of the proposed F.B.I. director.
When these individuals announce that political affiliation will influence their prosecution decisions, judges should believe them — and act accordingly.
Will this do the trick? To some extent, it could well serve to put a damper on flagrant bad faith prosecutions based on manipulating the system to punish enemies of the president, but the undermining of the integrity of the federal judiciary over the past decade presents a stumbling block. Both Trump, and his successor, have been fairly obvious about putting people on the bench for the purpose of having a judiciary that will reliably serve political ends. While it’s low-hanging fruit, consider Judge Aileen Cannon, whose use of her bench has been nothing short of disgraceful. And lest anyone believe that the 235 federal judicial appointees that followed Trump’s 234 didn’t strongly trend to the reliable left, you’re fooling yourself.
In the olden days, the federal judiciary was made up of biglaw refugees, former prosecutors and the kinds of people who had the ability to catch a senator’s eye. It’s not that they weren’t generally very conservative, or had their own partisan views that played out in their courtrooms, but that they believed themselves to be honest and fair in their rulings, even though they may not have been.
There is now a schism on the federal bench between the Trump judges and the Obama and Biden judges, where they are battling internally for judicial hegemony. Many, and perhaps most, believe that they can rise above the partisanship and, once confirmed for life tenure, no longer owe any president their loyalty. They aspire to be fair and impartial judges who will use their bench for the purpose of dispensing justice rather than retribution. Whether this will prove to be the case or reflects aspirational naivete remains to be seen.
But the problem is that the outcomes largely depend on the wheel, which judge is assigned in any given case such that huge swings in outcomes will create confusion and ever-greater partisan outrage and distrust. In the past, decisions which suffered popular disapproval were chalked up to bad outcomes, but not bad faith. Public trust in the judiciary has been eroded over the past few years, mostly by the left due to Supreme Court decisions that generated outrage and fear of more to come.
The judiciary, however, cannot function when the only time a judge can be trusted is when the judge rules the way your side wants. For judges to serve as the guardrails from government agents and prosecutors bent on using the system for retribution, they need public trust or adverse rulings will simply be seen as more partisanship, more dishonesty from the bench. That’s not going to help to stem the abuse of the legal system by the avenging angels of Trumpism.
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It’s like they knew.
I think Gertner and Cohen underestimate the resistance that will be encountered, within DOJ, to any nakedly political attempts to exact retribution through the criminal justice process. I think this is true at the Main Justice level and out in the field. Both U.S. Attorneys and AUSAs could face bar complaints for engaging in such conduct and will, for the most part, continue to have to work and live in the communities where they prosecute, long after President Trump is gone. Gertner and Cohen also ignore the traditional power and independence of U.S. Attorneys who, after all, are really appointed by the Senators (or Governors or Congressional delegations) belonging to the party that occupies the White House.
By the way, it is hardly “full tu quoque” to point out that the era in which “the Justice Department and the post-Hoover F.B.I., under presidents from either party, [were not] employed to attack political enemies,” ended during Jim Comey’s FBI stewardship. Gertner and Cohen seem to have forgotten about the Crossfire Hurricane fiasco. They might want to talk to the FISA Court or Carter Page about all those warrants that go “through layers of approval within the Justice Department.”
All that being said, if a blatantly weak political prosecution gets through DOJ, the majority of federal judges I have encountered will not hesitate to do the right thing at the moment of truth.
I think you underestimate the propensity of most judges to defer to the government. An example is the January 6th prosecutions and sentences. The January 6th riot was reprehensible. But it was not an insurrection. As an attorney who has represented hundreds of demonstrators many of whom were accused of engaging in similar conduct I can say that the sentences handed out to people accused of disrupting legislative activity were grossly disproportionate to the sentences or dispositions usually given to defendants engaged in politically motivated disruptions of government activities.
Trump threatened to weaponize the justice system. But Biden, Garland and Jack Smith with an assist from Alvin Bragg, Leticia James and Fani Willis delivered political retribution instead of justice. And the government jumped over the guard rails when the judges went along with government’s false narrative that the riot was an insurrection or that Trump’s misdemeanors were felonies. I hate Trump and the MAGA movement. But a lot (not all) of the defendants convicted for the January 6th riot deserve clemency or partial or complete pardons. So I don’t have much faith that the judges will save the Republic from politically motivated prosecutions.
I wholeheartedly agree wih you regarding the propensity of most federal judges to defer too much to the government. It’s a big problem in the mine run of cases. I’m talking about situations that appear, or turn out to be, highly irregular. A an example that comes to mind was the prosecution against Lauren Stevens, ultimately dimissed under Rule 29 by Judge Roger Titus. Of course in the Stevens situation, Judge Titus was presumably aware that U.S. Attorney Rod Rosenstein had refused to sign the Indictment. Another example of non-deferral was Judge Emmet Sullivan’s rejection of DOJ’s motion to dismiss in the Michael Flynn case. I think Sullivan was dead wrong in his refusal to grant the motion, and that the indictment of Flynn was a travesty, but the motion itself was very unusual. Regarding the D.C. judiciary’s sentencing of January 6 riot participants, I’ll defer to your first-hand knowledge. My guess is that some of these judges were very much affected by working and living so close to the scene of the crime.
Judges are like everyone else, they want to keep their job and their friends (in that order).
I live in a state where judges are appointed and reviewed by the legislature so my state house representative (also a lawyer and my brother) wanted to cover all potential judicial political leanings during my divorce and so recruited someone from the other side to officially represent me.
Strategy worked although the 83% reduction in her attorney’s fees surprised everyone (but makes my point).
I would suggest legislative approval to judicial reappointment but that just makes things even more political (if that is possible).
But if not the legislature, who?
Uninstructed judicial electoral delegates?
(Crazy talk!)
Sorry, on call tonight and severely sleep deprived but with 35 minutes to kill.