Last week was the last day of class in my White Collar Criminal Law course at George Washington University Law School. This semester, of course, our final “class” consisted of a virtual meeting, as the law school has moved instruction entirely online. The coronavirus crisis has certainly put a damper on the classroom experience. But as I spoke through my laptop camera to my students, who are now scattered far and wide, my mind was on a different crisis: the crisis in the justice system. I fear that crisis could linger on long after our concerns about Covid-19 have dissipated.
My professional background is as a federal prosecutor, and I teach my class from that perspective. Many of my students are interested in becoming prosecutors. The last day of class is always one of my favorite lectures, because I talk about the critical role of the prosecutor in our system of justice. Although that’s a theme I discuss throughout the semester, on the last day of class I really try to wrap up those points in what I call my “closing argument” as the final message I want to leave with my students.
In that lecture, I always emphasize the need for prosecutors to perform their duties without fear or favor, simply following the facts and striving to do the right thing. I talk about how prosecutors have tremendous power, and that with great power comes great responsibility. How prosecutors need to exercise the power they are given impartially, and must do their best to act with compassion, good judgment, and humility. I stress how these are not mere platitudes but are essential to the proper functioning of the justice system, and how for good prosecutors these principles become part of your professional DNA.
But last week, when I gave that lecture, I was confronted by new emotions. I felt defensive, almost embarrassed. I realized that I probably sounded hopelessly idealistic or naïve – or both.
Law School During the Trump Years
My class is made up of mostly third-year law students, ready to graduate and begin their legal careers. For most students in the class of 2020, their entire law school experience has been during the Trump administration. And that means the justice system they saw in the news every day frequently bore little resemblance to the one I was describing in class.
My students have seen a president who campaigned while promising a criminal investigation of his opponent if elected and who led chants of “lock her up” at his rallies. A president who routinely denigrates career federal investigators, prosecutors, and judges as corrupt political “deep state” hacks out to get him, while praising those in his own administration who have been convicted of felonies. A president who repeatedly sought to obstruct an independent investigation into his own misconduct, and largely got away with it. Who views the pardon power not as a solemn Executive responsibility but as simply another way to hand out goodies to those who win his personal or political favor. Through these and many other actions, Trump has shown that he views the criminal justice system as something he can weaponize to further his own political goals, and can ignore or defy when that suits him.
My students also have seen an Attorney General, William Barr, who appears to believe the president is above the law and that his job is to protect the president at all costs. Barr dramatically mischaracterized and “spun” the Mueller report to shape the public narrative to favor the president before the report was released. He challenges and undermines independent investigations by his own Department of Justice if he feels they are not sufficiently protective of the president. His DOJ helps the president stonewall any investigations by Congress and takes the position in court that Congressional oversight is illegitimate. He personally intervened in a criminal sentencing and undermined his own career prosecutors for no other reason than that the defendant, Roger Stone, is Trump’s political crony.
This has been the justice system on display during my students’ law school career. It’s a far cry from the one that I worked in and that I talk about all semester. So as I told my students last week, when I talk about the rule of law and the way the justice system is supposed to work, I couldn’t really blame them if they looked at me and thought, “He’s full of it.” Who could blame them for concluding the justice system is really just about politics and power, like seemingly everything else in this town?
The Crisis in the Justice System
But I urged my students not to give in to cynicism. I talked about how the norms governing the rule of law and prosecutorial integrity are fragile, and how it requires constant vigilance to protect them. Much of our system of justice depends on such norms. But because they are based on our common acceptance rather than enforceable mandates, such norms are relatively easy for the unscrupulous to ignore or exploit. I pointed out that our legal institutions and commitment to those norms have been severely tested before, but that they have proven remarkably resilient.
I told them to remember that facts do matter, and that lawyers, of all people, should recognize that. After all, we make our livings by arguing about facts and evidence. In a courtroom you can’t simply cry, “fake news!” and make up “alternative facts” to support your argument. (That’s why the trials of Paul Manafort and Roger Stone, for example, have seemed like such a refreshing break from this chaos: once in a courtroom, the nonsense and politics largely falls away and what matters is the facts and the law.) I urged them to remember that good lawyers respect decision-making that results from reasoned, civil arguments based on provable facts, and that our country needs that kind of decision-making right now.
I told them the justice system obviously isn’t perfect. Law is a human enterprise, and thus by definition is flawed. There are bad prosecutors, just as there are bad actors in every profession and every walk of life. A bad prosecutor who abuses his or her power can do tremendous damage. And when those at the very top of our justice system freely abuse their power, it’s incredibly dangerous. When you see such examples set by those in charge, it might be tempting to conclude that the norms that govern the rule of law are no longer really important or operative.
This is Not Normal
But I told my students the abuses they have seen are not the norm, and cannot be allowed to become the norm. I suggested they should not focus on actions such as Barr interfering in Roger Stone’s sentencing. Instead, they should think of the four career prosecutors who promptly and honorably resigned from that case in protest. They should consider the more than 2,500 former DOJ attorneys, of both political parties, who signed a letter protesting Barr’s actions and demanding that he resign. Current and former career prosecutors like these, who were appalled by Barr’s actions, embody the true ideals of the justice system. Thousands of them are still out there, doing their best to uphold those ideals in the face of this administration’s assaults.
Most important, I told them that what they have seen during their law school careers is not normal. It’s far from normal, and it’s dangerous. I urged them not to accept it. I asked them to take seriously the responsibility that comes with their legal training, and to walk out of law school and become part of a profession that begins the long, hard work of restoring the public’s faith in our system of justice.
I hate that the events of the past few years made my final words to my students seem so divorced from our current reality. But the ideals that I spoke about are not simply tired cliché’s — they are central to our national identity. In authoritarian countries, leaders use criminal prosecution as a political weapon to jail or silence their enemies, while remaining above the law themselves. That’s not what we do in the United States. Our commitment to the rule of law sets us apart from such regimes.
I hope I was convincing. Our country can survive a virus outbreak. But our country — as we’ve known it, anyway — can’t survive the politicization of our system of justice.
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