Over the course of 20 years in public service, including 15 at the Department of Justice, I had the opportunity to work under some great Justice Department leaders, including Janet Reno and Bob Mueller. I couldn’t have picked two people from more different backgrounds or life experiences to serve as mentors for a career in the Department. But each in their own way shaped me as a lawyer, as a prosecutor, as a public servant, and as a person. Many of us fortunate to have grown up in a Justice Department where by tradition and mission your dedication was to the institution and its role to do independent justice are now seeing this tradition being horribly strained and looking on in dismay.
As a young lawyer I went to work fresh off a federal clerkship to serve as Counsel to Attorney General Janet Reno. A daughter of the Florida Everglades and forged in a hardscrabble upbringing, she became the first woman to serve as Attorney General. Washington, DC didn’t know what to make of her when she first came to town; and that was just fine with her. Her oft stated response to withering and partisan criticism was: “I’m damned if I do, damned if I don’t, so I might as well do the right thing.” That rejection of the Capitol’s finger in the wind culture was unusual for the average appointee, let alone a member of the president’s cabinet.
Years later I found myself working for a living legend in the Department of Justice. As everyone now knows, Robert S. Mueller, III, is a graduate of the Ivy League, a decorated Marine and Vietnam war hero, a prosecutor of mobsters, murderers, and dictators. He led the FBI through the first 12 years of the War on Terror serving as its steady ballast through many crises and controversies under Republican and Democratic Presidents. Mueller famously threatened to resign rather than have FBI agents operate outside the rule of law; he has withstood a barrage of personal attacks at different points in his career for doing his job and not serving anyone’s political agenda. The man has the truest compass of anyone I’ve ever known and I saw him use it time and again — never for personal gain or political interest — but always in service of the integrity of the institution he led.
Though different, Reno and Mueller shared something that shaped me and so many other young Justice Department lawyers, something that in the past has represented the best of the Department and which is now under profound pressure. They shared a reverence for the institution, for upholding the norms and traditions of independence and of doing justice without fear or favor, and never, ever, letting politics or partisanship influence an investigation or prosecution decision.
To be clear, the Justice Department is unique in wearing two hats in our system: independent investigator and prosecutor, and an executive branch agency bound to facilitate the president’s legitimate policy objectives. That’s policy objectives, not political objectives. Department lawyers under both Republican and Democratic administrations have at times struggled to provide their best legal advice while also seeking where possible to facilitate the president’s legitimate policy choices. This dual hat has been the source of many controversies over whether past Department leaders have bent too far to please the boss.
But today, we are witnessing a very different strain, a dangerous fraying of the perception of the Department’s independence. The latest controversy does not involve criminal justice priorities but rather — in its best light — the appearance of direct and self-interested intervention in a law enforcement matter. Whether or not the stunning Departmental reversal in the Roger Stone sentencing which has now resulted in the withdrawal of all four career prosecutors from the case, (and the Departmental resignation of one) was the result of specific political interference, if you understand the Justice Department, the damage has already been done. The reputation and credibility of the Justice Department has been dealt a significant blow. The job of prosecutors and DOJ attorneys is both to do fair and impartial justice and to appear to have done so. A prosecutor withdraws from a case if and only if she believes she cannot in good conscience proceed. This standard is not met by disagreement, or preference that a decision go a different way. This high threshold is met only when as an officer of the court you cannot stand up and say the words that every Assistant US Attorney beams with pride at saying, I am here on behalf of the United States Justice Department; I represent the United States in this matter. If you cannot stand up and in good conscience advance the position of the Department you have no choice but to withdraw and sometimes to resign altogether. That’s how serious this is. It is a fundamental question of who and whose interests you serve.
The fact that four prosecutors have now withdrawn from a case after, at the very least, the appearance of political influence in the matter, has done incalculable harm to the credibility of the Justice Department. The line attorneys who resigned this week earned their name as public servants — because they stood on the front lines and honored their oath. But they shouldn’t stand alone as the conscience of the department. As someone who has served as a career federal prosecutor and in politically appointed posts — I believe political appointees should have the backs of the career professionals and they have their very jobs because they are the ones who are politically accountable. So, while it is a sad day when the career assistant U.S. attorneys stand alone on the line, it is also a sign of the Department’s strength — under significant strain though it may be.
Janet Reno hung a portrait of Edward Levi in the Attorney General’s conference room. It was her way of honoring the fact that she was a temporary custodian of a great institution, just as Levi was after Watergate when President Gerald Ford asked him to lead the Justice Department following Nixon’s resignation. Before appointing him, Ford reportedly asked Levi, what he thought the Department needed most in that troubled era. Levi replied: “A soul.” The Department’s soul is alive and well in the integrity of its career professionals — they could use some support.