Let the Rule of Law Rule Law Enforcement: Reflections on the Current Attorney General’s Tenure

Years ago, when I was a young Assistant United States Attorney for the District of Columbia, I was charged with the prosecution of a popular sitting United States Senator. It was, at that point, the most significant case I had been assigned. In the midst of my preparation, I received a call from the U.S. Attorney himself, telling me that my presence had been requested by the Assistant Attorney General for the Criminal Division, and that I was to attend a meeting about the case the next day at “Main Justice,” the colloquial name for the Department’s headquarters. Not long returned from overseas military service, and not yet steeped in the politics of the Department of Justice, this call was a decidedly unique experience for me. I reported to supervisors several steps down from the U.S. Attorney, who himself rarely, if ever, had any need to speak to me. And I had never even been inside of the Main Justice building.  So, given the importance of the case, I naturally asked, “Who will be going with me?” “You’ll be on your own” was the reply.  And when I inquired if there was anything particular that I was supposed to convey, I was told that I’d know what to do. Really?

With some apprehension, I appeared at Department headquarters and was led to an anteroom in the Criminal Division where I was joined by the defendant Senator’s attorney, among the best-known and most capable lawyers in the country, a name partner in one of the top law firms in Washington and an important political supporter of the incumbent president (Nixon), a fact that gave me pause. What’s more, he brought along a partner and several associates to back him up in seeking the Department’s dropping of the case.

Soon an inner door opened and the Assistant Attorney General (AAG) stepped out, uttered a general greeting and asked me – just me – to come into his office. The AAG introduced himself and then simply asked whether I thought the case in question was justly brought and whether the evidence was sufficient to support a guilty verdict at trial. I responded that we recently had “turned” a key witness and that the evidence otherwise was sound, and that we were well prepared. That was the whole conversation.

The AAG and I then walked back into the anteroom, and he turned to the Senator’s attorney and simply said that he had reviewed the matter with the Assistant U.S. Attorney and was satisfied that the prosecution was a just one and it would go forward. There was nothing else to be said but “goodbye.” The case ultimately proceeded to a successful conclusion and I was left with an indelible understanding that the business of the Department was doing impartial justice and that our cases would be brought against violators of the law, irrespective of station. And upon conviction, our sentencing recommendations would not be materially different for the socially or politically well-connected than they would be for others.

That Assistant Attorney General was the legendary Henry E. Petersen, who led his division in successfully attacking organized crime over decades and overseeing actions detrimental to the corrupt interests of the President of the United States throughout the Watergate era. Petersen was a beacon of strength and rectitude among DOJ staff lawyers and Assistant U.S. Attorneys, but he wasn’t the only one who stood as a guarantor of Departmental fairness. In the Criminal Division, there were senior career lawyers like Jack Keeney, David Margolis, and Bea Rosenberg. In other divisions there were career lawyers like Stuart Schiffer and Earnest Brown. There were U.S. Attorneys like Thomas Flannery in D.C. and Bob Fiske in the Southern District. All of these were important influencers in my career and in the careers of generations of lawyers throughout the country. Some of them became my colleagues in later years and I’m forever grateful for that.

Another of those heroes was Earl Silbert, the leader of the original team that prosecuted the Watergate “Plumbers.” I played a minor role in the early stages of that litigation, and all who were associated understood that they were probing a matter that led directly to the door of the president. Silbert and his co-counsel, Seymour Glanzer and Don Campbell, kept going and secured the convictions of the defendants. Under pressure from a pending maximum sentence, one of them, James McCord, wrote a letter to the Court and disclosed information that ultimately led to the resignation of the president. Although the result was superintended by an outside Special Prosecutor appointed in the wake of the “Saturday Night Massacre,” and an energetic Senate led by Senators Sam Ervin and Howard Baker, it was the work of Silbert, then U.S. Attorney for the District of Columbia, that materially led to the downfall of the president who had appointed him. Close observers will note: the sentencing strategy that broke McCord sharply contrasts with more recent events concerning Roger Stone or Michael Flynn.

The men and women who were my contemporaries, and later subordinates, as federal prosecutors, in whatever district they practiced, were mindful of the transcendent words of Justice George Sutherland. In the 1935 Supreme Court case of Berger v. United States, Sutherland wrote:

“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.”

While defense counsel might have broader license to argue about the facts and the law, the federal prosecutor owes a special duty to the public and to the court to argue responsibly and always to state the facts as they are, not as one might like them to be. If government lawyers were forced to fight with a metaphorical hand tied behind their backs, they welcomed the challenge, and far more often than not persevered and prevailed.

Prosecutors have great power in their charging decisions and in the conduct of criminal litigation. Their decisions and the results that they produce must be “durable.” That is, their actions must be perceived as fair and consistent by the public who needs to know how they are expected to conform their conduct to the requirements of the law and, not just to obey the law, but to respect it. And as a result of scrupulous screening and preparation, the government achieves a high conviction rate and most criminal cases result in guilty pleas, with the added outcome that prosecutors’ recommendations within the framework of the Sentencing Guidelines are generally given great weight. This magnifies the prosecutor’s responsibility to assure that the sentences of offenders in comparable cases are not made disparate by racial, economic or social bias or personal favoritism.

Adherence to these principles is what has caused now more than 2,600 former prosecutors and Department of Justice lawyers to sign a letter of protest concerning the current Attorney General’s decision to override, apparently without consulting them, the trial team’s sentencing recommendation in the case of Roger Stone, a crony of the president convicted among other things of lying under oath and obstructing a witness. Though he has many attributes, including a keen intellect, the Attorney General has never been a prosecutor. He has never stood before a federal jury and announced, with humility, that the United States of America is ready for trial, or allocuted on behalf of the victims at a criminal sentencing. It is not a necessary qualification to be the Attorney General to have done these things, but I can say from my own experience that it helps.

In the wake of the withdrawal from the Stone case of the four experienced government attorneys who prosecuted it, and the widespread support throughout the legal community that those attorneys have received, supporters of the Attorney General have argued that the criticism of him is unwarranted because he simply is doing his job, in this case correcting a sentencing recommendation that he believed was too harsh.

His supporters, including those who may be well motivated, miss the point.

Whatever the Attorney General was thinking, his low-ball recommendation gives more of a whiff of favoritism than it does of principle. Indeed, one cannot recall any similar leniency being ordered in any other case, particularly in the host of cases that the government brings against members of minority groups or those who are economically disadvantaged. In fact, the Stone prosecution team did no more than to follow the Department policy of the so-called “Sessions Memo” that required them to seek the most severe sentence that the facts of the case allowed. In short, it looks to many present and former federal prosecutors that undue leniency was being afforded to a privileged, white friend of the president, who himself lent credence to the charge of favoritism by his relentless social media criticism of the case, the prosecutors, and even the presiding judge.

Of course, it is not unusual for an Attorney General or his top subordinates to have disputes with line lawyers and to override their recommendations. Indeed, while Acting Attorney General during the first part of the Clinton administration, I caused the discharge of two United States Attorneys and an FBI Director. But those involved disagreements of substance, intended on my part to assure consistency with settled law, not to create disparity in its administration.

I worked effectively with Attorney General Barr during the entirety of the first Bush Administration and respect his intellect and a great many of his most strongly-held views, but not on his historically and constitutionally erroneous view of the power of the Executive. The President may be a “Unitary Executive,” the predominant Article II officer, but his power does not extend to the other branches. I have been asked whether I thought that Barr’s views somehow have evolved to the positions that he now takes that seem to extol absolutist Executive power and a quasi-authoritarian, almost disciplinary cultural agenda. I think that, if there is any difference, it comes from the fact that he now serves a president with radically authoritarian views who is amenable to, and intensifies, his Attorney General’s views. Their relationship is symbiotic: each enables the other, Barr with the far stronger intellect, the president with his visceral public voice.

News reports have suggested that the Attorney General claims to be more concerned about doing what he believes is the right thing than he is in getting support from the rank and file at the Department. But you can’t lead if only a few are willing to follow. And it is clear that there is a substantial segment of the line lawyers at the Justice Department and in the U.S. Attorneys’ offices who are looking more over their shoulders than straight ahead. They are concerned not only about the Stone case, but also about the case of disgraced presidential advisor Flynn, also a subject of presidential tweeting. And they are concerned about what they see as now-routine punitive appointments of favored outside federal attorneys to oversee their cases at the Department and in their districts. Many also were concerned about the misrepresentation of the findings of the report of Robert Mueller, who is a highly-respected former head of the Criminal Division. Still other insiders bridle at having to support presidential contravention of Congress’s specific intent in the effort to reprogram moneys denied him for his border wall. It also is clear that the appointment of an interim U.S. Attorney for the District of Columbia has caused a strongly negative reaction among the career prosecutors there and elsewhere.

In sum, many citizens both inside and outside the Department of Justice are asking whether DOJ stands for the rule of law or for the rule of an authoritarian administration.  Adherence to the law and the Department’s traditions demands that it clearly be the former. There is no room for error or even the perception of it being otherwise. 

About the Author(s)

Stuart M. Gerson

Stuart M. Gerson is a former Acting Attorney General of the United States, Assistant Attorney General, and Assistant United States Attorney.