The Crisis in the Justice System: A Message to My Students

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.

Attorney General William Barr has contributed to the crisis in the justice system
Attorney General William Barr

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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The Rot at the Department of Justice

Almost exactly one year ago, I wrote this post about the resilience of the Department of Justice in the face of president Trump’s onslaught. I argued that although Trump had repeatedly tried to thwart the Mueller investigation, he had been largely unsuccessful due to the strength of the norms mandating that DOJ criminal investigations be free from White House interference. And like many others, I was cautiously optimistic that this would continue under the new Attorney General, William Barr. I wrote:

Whatever you may think of his policies, Barr is a serious person and former Attorney General who understands his role. Once again, if Trump thought that by appointing Barr he was installing someone who would make protecting the president his top priority, I think he is going to be disappointed.

Yikes. You have to grant me this: when I blow it, I really blow it. It took Barr only a few months to prove how spectacularly wrong I was.

Under Barr, the norms of DOJ independence have been shredded. He repeatedly acts like a personal attorney for the president, not like an Attorney General charged with safeguarding the rule of law for the entire country. Barr and Trump have deployed DOJ as a weapon to advance Trump’s political interests and petty personal feuds. And Barr has personally intervened, in an unprecedented way, in criminal cases involving the president’s cronies.

There’s an old saying that a fish rots from the head down. Well, the head of the Department of Justice is rotten. The only question now is how far the rot will extend, and how long it will endure once Barr and Trump are gone.

Richard Nixon
President Richard Nixon

The Tradition of DOJ Independence from the White House

Under president Richard Nixon, the Department of Justice was weaponized and used to further the president’s political interests. Nixon’s Attorney General John Mitchell went to jail for his role in Nixon’s crimes and the subsequent cover-up. Nixon’s case highlighted the dangers of allowing a president to use the awesome power of DOJ, including the power to control criminal investigations, to serve his private political interests. As part of post-Watergate reforms, a figurative wall was erected between the White House and DOJ when it came to criminal investigations.

In the nearly fifty years since Watergate, DOJ criminal investigations have been largely insulated from political influence by the White House. As a general rule, discussion of individual criminal cases between a president and the attorney general has been considered off limits, and presidents generally avoid weighing in on the merits of particular criminal cases. No one claims this rule was never stretched or breached, of course, but in general, administrations of both parties recognized that this norm of DOJ independence was important and worthy of respect.

The example from my own experience that this always brings to mind involves the prosecution of former Illinois Congressman Dan Rostenkowski. Rosty was the chair of the House Ways and Means Committee and one of the most powerful Democrats on Capitol Hill. When Bill Clinton defeated George H.W. Bush and was elected president in 1992, I was part of a team of prosecutors at the U.S. Attorney’s Office in Washington, D.C. in the midst of a lengthy criminal investigation of Rostenkowski for looting various accounts at the House of Representatives.

Rosty was a key political ally of Clinton’s and was critical to his (ultimately unsuccessful) efforts to pass health care reform. But there was never even a suggestion that we should back off the investigation in order to further Clinton’s political goals. None of us involved in the case even really gave that possibility a moment’s thought — we knew that was not how DOJ operated. The investigation, begun under a Republican administration and Republican U.S. Attorney, was completed under a Democratic administration and Democratic U.S. Attorney. Rostenkowski was indicted, convicted, and sent to prison. As Eric Holder, Jr., who was the U.S. Attorney at the time, recently confirmed, there was never any interference from the White House.  That’s how it’s supposed to work.

Jeff Sessions
Former Attorney General Jeff Sessions

Trump’s Early Attempts to Breach the Wall

It was always clear that Trump has no appreciation for the importance of DOJ independence and simply sees the Department, like the government in general, as a tool to be used to benefit himself. Even before he was elected, he threatened that he would direct his Attorney General to prosecute Hillary Clinton and that she would “be in jail” if he became president. Trump spoke repeatedly about wanting an Attorney General who would protect him like Roy Cohn, his former personal lawyer and chief counsel for the McCarthy hearings. Trump thought he had found that when he picked Alabama Senator Jeff Sessions, one of Trump’s earliest and most steadfast supporters, to be his attorney general.

But Sessions, a former United States Attorney, resisted Trump’s efforts to use DOJ to serve his personal interests. When questions arose about his own contacts with Russian officials, Sessions properly recused himself from all matters involving the Russia investigation, which infuriated the president. According to the report by Special Counsel Robert Mueller, Sessions thereafter repeatedly resisted entreaties from Trump to “un-recuse” himself so that he could step back in and shut down the Mueller investigation. Sessions maintained the independence of DOJ in other ways as well. For example, his DOJ indicted two Republican members of Congress in the fall of 2018, shortly before the mid-term elections – an act for which the president, naturally, criticized him on Twitter.

During the first two years or so of Trump’s presidency, others who also respected the tradition of DOJ independence thwarted his efforts to interfere with the Mueller probe. Trump requested “loyalty” from FBI Director James Comey, and later asked him to go easy on Michael Flynn, Trump’s former national security advisor, who was ultimately convicted of lying to the FBI about his Russian contacts during the campaign. When his efforts to pressure Comey failed, Trump fired him. That didn’t work either, because Deputy Attorney General Rod Rosenstein, another career DOJ employee, promptly appointed Mueller as special counsel.

The Mueller report also details how White House Counsel Don McGahn resisted Trump’s efforts to obstruct justice. At one point Trump demanded that McGahn have Mueller fired, but McGahn refused to follow that order and was prepared to resign in protest if necessary. Trump later ordered McGahn to create a document falsely denying that this had ever taken place, and McGahn once again refused.

The Mueller investigation proceeded to its conclusion largely unimpeded. Trump was able to do little more than rage-tweet incessantly about the “witch hunt.” There were some guardrails still in place, people who would stand up to Trump’s improper demands – or at least fail to carry them out until he moved on to something else. Trump’s efforts to bend DOJ to his will were largely unsuccessful. That’s what I wrote about in that earlier post.

Now all that has changed.

Attorney General William Barr
Attorney General William Barr

Barr’s Politicized Department of Justice

After more than a year with Barr as the Attorney General, it’s become clear that he has no intention of upholding DOJ’s tradition of independence from White House influence. On the contrary, Barr appears only too willing to use the power of DOJ to protect the president and advance Trump’s personal political interests.

The first real sign of trouble was Barr’s handling of the Mueller report. His incredibly misleading press conference and letter after he had received the final report “spun” the results and created the impression that Mueller had found no wrongdoing by the president. Although Mueller had declined to make a call on obstruction of justice, Barr himself declared that there had been no obstruction. When the report was finally released weeks later, it became apparent how misleading Barr’s characterization of the report had been, but by that time the “no obstruction, no collusion” narrative was firmly implanted in the public’s mind.

There have been many other troublesome events. For example, in the wake of the phone call with the president of Ukraine that ultimately resulted in Trump’s impeachment, DOJ quickly concluded there was no campaign finance violation and did not even investigate the possibility of bribery, which was clearly implicated by the call. During the Trump administration’s ongoing battles with Congress, Barr’s DOJ has repeatedly supported the administration’s complete refusal to cooperate  with Congressional oversight and blanket assertions of absolute immunity prohibiting testimony by any administration officials. In court pleadings, DOJ has argued that Congress essentially lacks the power to investigate any possible criminal misconduct by the president. Barr announced he has created an intake process to accept information from Rudy Giuliani about the Bidens and Ukraine, part of the efforts that led to Trump’s impeachment. He has appointed another U.S. Attorney, John Durham, to examine whether the investigation into Russian interference in the 2016 election was begun improperly, part of Trump’s claim that the entire Russia investigation was a hoax.

But in recent weeks, it’s been Barr’s interference in the criminal cases of Trump allies who were prosecuted by Mueller that has really set off alarm bells about the lack of DOJ independence.

Roger Stone
Roger Stone

The Roger Stone Case

Republican political operative and Trump advisor Roger Stone was convicted by a jury last November of seven felony counts of lying to Congress, obstruction of justice, and witness tampering. The jury found that Stone repeatedly lied to a Congressional committee about his role as an intermediary between the Trump campaign and Wikileaks concerning the stolen Democratic emails that were released in the weeks leading up to the 2016 election. Stone also threatened another witness, Randy Credico, including sending text messages telling Credico to “prepare to die” and threatening to harm Credico’s dog.

The federal sentencing guidelines call for Stone to be sentenced to between 7 and 9 years in prison. That’s a pretty stiff sentence for this kind of case, but it was largely driven by the threats to a witness and by the pervasiveness of Stone’s misconduct. The sentence was calculated by the U.S. Probation Office, which prepares a pre-sentence report for the judge that includes the guidelines calculations.

The career prosecutors who convicted Stone filed a sentencing memorandum on Monday, February 10. They took a pretty hard line on Stone and his misconduct, and agreed that a sentence within the guideline range recommended by the probation department would be appropriate. At the same time, they acknowledged the court might find that some of the guidelines enhancements should not apply, and that such a finding could result in a lower sentence. Overall, it was a tough but measured position and, considering that it was right in line with probation’s recommendation, it was certainly nothing unusual. In fact, they were following DOJ policy; Sessions had issued a memorandum in 2017 instructing prosecutors that in most cases they should request sentences within the guideline range.

But at around 2:00 am the following day, Trump tweeted out what he thought about the proposed sentence:

Hours later on Tuesday, senior DOJ officials announced that they thought the proposed sentence “extreme, excessive, and grossly disproportionate” and that they would be filing a new sentencing memorandum. That memorandum was filed later on Tuesday, with the Department now recommending a much lower sentence. On Wednesday, Trump tweeted out a congratulations to William Barr for “taking charge” of the Stone case.

The Tuesday Night Massacre

None of the names of the four career prosecutors who worked on the Stone case appeared on the new sentencing memo. They all moved to withdraw from the case in protest, and one of them quit the Department of Justice entirely. Some have dubbed this the “Tuesday Night Massacre,” a reference to the Watergate “Saturday Night Massacre” when Nixon’s Attorney General and Deputy Attorney General both resigned rather than carry out his order to fire Watergate special prosecutor Archibald Cox. (In this sequel, the role of Solicitor General Robert Bork, who ultimately agreed to fire Cox, is played by John Crabb, Jr., a supervisor at the U.S. Attorney’s Office, who signed the pleading after the other prosecutors refused and quit.)

Barr subsequently claimed in an interview that he had already decided to intervene in the Stone case before Trump’s tweet, and that he had no communication with the White House about it. But even if true, that’s beside the point. Everyone, including Barr, could predict how Trump would react to Stone’s proposed sentence. And there is absolutely nothing unusual or extraordinary about Stone’s case that would justify the personal attention of the Attorney General.

Former DOJ officials have been commenting on social media about how many cases they can recall where the Attorney General personally intervened about a sentencing recommendation. So far, the total for everyone I’ve seen – including me – is zero. And it would be ridiculous to suggest that Barr suddenly developed a newfound concern about the harshness of the federal sentencing guidelines. There’s no plausible explanation for Barr’s intervention other than that it was done to appease the president and try to cut one of his political cronies a break.

Michael Flyy
Michael Flynn

The Michael Flynn Case

The case of Michael Flynn, Trump’s former national security advisor, has seen some strange twists and turns. Flynn pleaded guilty to one count of lying to the FBI about his contacts with the Russian ambassador in the weeks leading up to Trump’s inauguration. He agreed to cooperate with the Mueller investigation. At the time of his initial sentencing date in December 2018, prosecutors told the court that Flynn’s cooperation was extensive and they did not oppose a sentence of probation. However the judge did not seem satisfied, and looked like he was poised to send Flynn to prison anyway. The sentencing was then continued to allow Flynn to cooperate further by testifying in the trial of his former business associate about their work on behalf of Turkey.

Leading up to that trial, however, prosecutors decided Flynn was lying to them, and they never put him on the stand. They went back to his sentencing judge and withdrew their recommendation of a sentence of probation, arguing for a sentence within the guideline range – which was still only 0-6 months.

Flynn’s new lawyer, Fox news regular and conspiracy theorist Sydney Powell, flipped out (that’s a legal term). She filed motions to withdraw Flynn’s guilty plea and to dismiss the case entirely, accusing prosecutors of gross misconduct. Prosecutors responded to those motions by returning to their earlier recommendation of a sentence of probation. That seemed odd, but not earth-shattering, since probation was always an option within the recommended guideline range.

But now it appears Barr may have had a hand in that reversal as well. There are reports that Barr has appointed an outside prosecutor to review the entire Flynn prosecution. And during the time the government softened its sentencing position, Trump removed the U.S. Attorney who had convicted Stone, Jessie Liu, and replaced her with Timothy Shea, a former close aide to Barr. The government’s backing off harsher sentencing recommendations as to both Stone and Flynn coincides with the arrival of Barr loyalist Shea as the acting U.S. Attorney.

The Fallout from Barr’s Actions

Barr’s very public interference with the criminal investigations of Trump’s political cronies has resulted in some extraordinary blowback. More than 2,000 former DOJ employees, from both parties, have signed a letter demanding that Barr resign. Barr’s former colleague in the George H.W. Bush Justice Department, former Deputy Attorney General Donald Ayer, wrote an article in the Atlantic demanding the same thing. The Federal Judges Association convened an emergency meeting to discuss the “deepening crisis” involving Barr and the DOJ. There are rumors that Barr is thinking about resigning, although I find that very hard to believe.

Trump, meanwhile, tweeted that he believes he has every right to intervene in criminal cases prosecuted by DOJ:

As disturbing as this Tweet may be, Trump is technically correct: there is no law that prohibits such interference. Only the norm of DOJ independence, and our traditional adherence to the rule of law, stand in his way. This norm is what separates us from authoritarian regimes, where leaders use criminal prosecution as a political weapon against their enemies. Events over the past year have shown us what a fragile norm that is, and how easily it can be discarded by an administration with no regard for the rule of law and concerned only about maintaining power.

You have to wonder what else might be coming between now and the election. What will become of all the other investigations that were referred out by Mueller, and with the ongoing investigations in the Southern District of New York that may implicate Trump, his business, his family, and his close associates? There seems little reason to be confident that they will be allowed to proceed unimpeded.

It also now seems entirely predictable that, at some point later this year, we are going to hear an announcement from DOJ of some kind of investigation that benefits the president. Maybe it will be a criminal investigation of whoever ends up being Trump’s Democratic opponent, or a report concluding that the entire Russia investigation was a sham and part of a “deep state” effort to take down Trump. Under Barr, the politicization of DOJ appears to be nearly complete.

There are still a few guardrails remaining. One is the independent judiciary. The judges in the Stone and Flynn cases will have the final word on their sentences, regardless of the DOJ recommendations – although Trump will, of course, always have the final card to play in the form of a possible pardon. And the dedicated career people at DOJ, who still believe in its mission, will continue to fight and protest from the inside. Perhaps more will follow the lead of the Stone prosecutors by stepping down rather than agreeing to go along with Barr’s corruption.

One day, one way or another, Trump and Barr will be gone. I hope that DOJ can recover from the damage they have done. It’s not easy to restore public trust once an institution’s integrity has been so badly tarnished. But the country did it after Watergate, and hopefully it can do it again. If not, then the damage to our system of justice and belief in the rule of law may become one of the most tragic legacies of the Trump administration.