The Justice System at Risk

My parting message to my students

Yesterday was the last day of the semester in my White Collar Criminal Law class at George Washington University Law School in Washington, D.C. Before I was a professor I was a federal prosecutor, and I teach the class from that perspective. Most of my students are in their third year, about to graduate and begin their legal careers. Many of them are interested in becoming prosecutors or in other forms of government service.

The lecture I give on the final day of class is always one of my favorites. I talk about the rule of law and our criminal justice system, and the critical role of the federal prosecutor in preserving that system. It’s a theme I stress all semester, but on the last day of class I wrap it all up and send them out the door with what I like to call my closing argument; the final lessons I want to make sure they take with them.

I talk about the rule of law as the very foundation of our democracy. It means similar cases and defendants should be treated alike, without regard to politics, race, wealth, or other improper considerations. I emphasize the need for prosecutors to do their jobs without fear, favor, or politics, following the facts and striving to do the right thing. I remind them again that the prosecutor’s job is not to win, but to see that justice is done. I discuss the tremendous power that prosecutors have and how with that great power comes great responsibility. I stress that these are not mere platitudes but are core principles of our justice system that become part of every good prosecutor’s DNA.

My closing argument has felt increasingly urgent these days.

I’ve taught my class for nearly twenty-five years. I’ve always been proud to give that lecture, just as I am proud of my service as a federal prosecutor. But in recent years, when delivering these closing remarks to my students, I’ve experienced some different emotions. I feel defensive. I fear that in light of what my students see going on around them I must sound hopelessly idealistic or naive – or both.

Consider what’s happened over the past decade. When most of my students were in high school or beginning college, they witnessed a president with no respect for these principles. President Trump considered the justice system to be simply another political weapon he could wield for his own benefit. During his campaign he threatened to “lock up” his political opponents. In office he routinely denigrated federal prosecutors and law enforcement officials who were part of his own administration. He praised those who committed crimes on his behalf. He saw the pardon power not as a solemn Executive responsibility but in transactional terms, as a way to reward allies or political supporters. Once out of office, he continued to claim that the justice system is “rigged” and had been weaponized against him.

Now, in Trump’s second term, things are far worse. Trump is using the Justice Department to target those he sees as political enemies, without even trying to hide it. He continues to denigrate career prosecutors and law enforcement professionals, calling them deranged thugs and “dangerous people.” Cases are dropped against those who support the president politically or financially. He pardons his allies and supporters, including hundreds who violently stormed the U.S. Capitol and assaulted law enforcement officers in an effort to overturn an election on his behalf. His Justice Department fires or demotes career officials simply for doing their jobs in the January 6 cases and other prosecutions. He orders his administration to sanction law firms for doing nothing more than representing clients Trump doesn’t like.

That’s the justice system my students see now as they prepare to graduate. It’s a far cry from the system I worked in and loved and that I talk about all semester. So as I told my class yesterday, when I discuss how the justice system is supposed to work, I understand how my words could ring hollow. Who could really blame my students for thinking, “He’s full of it” – for concluding that the justice system really is just about politics and power, like seemingly everything else in this town?

But I urged them not to give in to cynicism. I emphasized that what they’ve been seeing is not normal — and is dangerous. I talked about how the norms concerning the rule of law, the independence of the Justice Department, and prosecutorial integrity have to be protected. Those norms are fragile and can’t be taken for granted. And right now they are under attack.

As I told my students, this is not a political issue. If a Democratic president were doing these things, I’d be making the same arguments — just as we see so many Republican former DOJ officials protesting what is going on and agreeing to represent those who are resisting the administration. Many of us, from both political parties, are horrified and heartbroken over what is happening.

We may disagree about tax policy, or immigration policy, or foreign policy, or any other political issue. But for generations, DOJ attorneys and others, on both sides of the aisle, agreed that despite our political differences we were all operating within a certain baseline set of fundamental principles, including:

• That criminal prosecutions are based on the facts and law, not politics;

• That the Justice Department is largely independent of the political arms of the administration;

• That the justice system is not used to target a president’s perceived political opponents;

• That everyone, even those who oppose the administration, is entitled to representation from counsel of their choice;

• That the Executive Branch is required to follow lawful court orders, even those it doesn’t like;

• That everyone in this country is entitled to due process — before, for example, the government snatches you off the street and sends you to a foreign prison.

I emphasized how almost all career government attorneys from both parties, like those with whom I used to work under both Republican and Democratic presidents, cherish these fundamental principles. No one would claim that they were always perfectly followed. There have been abuses and mistakes, and people sometimes disagree on how they should be applied. But almost no one doubted their critical importance and legitimacy.

Now president Trump, aided and abetted by his attorney general Pam Bondi and other senior officials, is kicking those bedrock principles to the curb.

Trump's Corruption of the Justice Department

Republican attorneys at the Justice Department and in the White House who refused to discard these ideals in the pursuit of power acted as guardrails during the first Trump administration. So he’s made sure there are no such guardrails this time around. He has surrounded himself with Cabinet members and advisors whose chief qualification is their willingness to endorse and enable his worst impulses. Meanwhile, Republicans in Congress are completely cowed and unwilling to defend the critical norms that are under attack, even though most of them know how dangerous this all is.

But career people at the Justice Department still believe in those principles, even if their new leadership does not. We saw it, for example, in the actions of the prosecutors in New York and D.C. who resigned in protest rather than follow the corrupt order to dismiss the case against New York Mayor Eric Adams. Those are the people acting in the finest traditions of the Justice Department and who deserve our admiration and support. Those people are still out there, both within and outside the Justice Department, willing to fight for those ideals.

I also urged my students to remember that facts matter. They grew up during an age when that seems to be in doubt. Politicians and others routinely make claims with no factual basis — and half the country believes it. Lies take off on social media, where there is no fact-checking, and gain a life of their own. If a politician’s claim is later proven false, he simply denies he ever said it - relying on our brief public attention span to move on to the next outrage of the day. This is a tool right out of the authoritarian handbook: repeat a lie loudly and regularly, and eventually people will start to believe it.

But lawyers, of all people, should recognize that facts do indeed matter. We make our living by arguing based on facts and evidence. One place where simply making up your own facts doesn’t work is in court. In a courtroom you can’t simply cry, “Fake News!” or create your own evidence. Recall that in the aftermath of the 2020 election, Trump and his allies made repeated false claims of voter fraud. Those claims were widely circulated on social media and believed by many of his supporters, but when they were actually tested in court they fell apart. The legal system is one institution that has held up pretty well in the face of this “facts don’t matter” trend.

That’s why those in power who want us simply to believe whatever they say must also attack law firms, the justice system, and the independent judiciary. The legal system’s truth-seeking function is a threat to them.

I urged my students to remember that good lawyers respect decision-making based on reasoned, civil argument and on provable facts. I said as lawyers it will be their responsibility to advocate for that kind of decision-making. I encouraged them to take seriously the responsibility that comes with their legal training. 

Most importantly, I told them not to accept what they see happening around them. I said I realize we live in a cynical age, but they can’t get cynical about the fundamental principles that underlie the justice system - they have to go out and fight for them. I urged them to leave law school and become part of a profession that resists the current assaults on our justice system and ultimately begins the long, hard work of restoring the public’s faith in that system.

I hate that the events of recent years risk making my final words to my students seem so divorced from their reality. But the ideals I spoke about are not merely tired cliches - they are central to our national identity. Authoritarian leaders use the justice system as a political weapon to jail or silence their enemies and reward their friends. Our commitment to neutral justice and the rule of law sets us apart from such regimes. If we lose that, we will have lost something very fundamental.

A number of students came up to speak to me after class yesterday. They understand what is going on and what is at stake, and are committed to working to fix it. Based on talking to many students over the years, I have great faith in their generation’s ability to help turn things around. They give me hope. As I approach the end of my own legal career, I only wish they didn’t have to begin theirs under such perilous circumstances.

This is an updated and expanded version of a post I wrote after the last day of class in the spring of 2020, near the end of the first Trump administration. As I noted, it seems even more urgent today.