Patriotism and Justice on an Unusual Independence Day

Although only half gone, it is no exaggeration to describe 2020 as an annus horribilis, especially in the United States. Millions of Americans have been infected by the COVID-19 coronavirus, and at current count, more than 130,000 of us have died. That number continues to rise. The pandemic has driven us into isolation and devastated our economy in a manner whose negative effect will be felt for years to come. The ranks of our unemployed have swelled and our system of health care seems inadequate to meet the needs of a large segment of the population. States that precipitously have tried to reopen their businesses and institutions have seen an upswell in cases that matches or exceeds the rate of infection experienced at the outset of the pandemic. At the same time, demonstrative cases of police misconduct and institutional racism have opened old societal scars, and our people are angry, afraid and disunited. At the national level, our leadership doesn’t lead. It simply blames. Our status in the world has declined to the point where we cannot control events, our critical alliances are weakened, and our citizens are not even welcomed into allied countries. We have a presidential administration that bows to dictators and even tolerates an adversary’s contracting for the murder of our soldiers. And, amidst it all, we have a president and a Department of Justice that are eroding the rule of law — the glue that holds a free society together.

So, now it’s the Fourth of July, the day on which Americans celebrate their independence and the greatness, innovation and prosperity that our freedom has produced. It is the holiday that most embodies patriotism, that is, love of country. In this year, some might argue that there is less to love. To the contrary, especially in this year, it is time to love it more and to exercise individual responsibility to call out abuse — especially affronts to the rule of law — and take action to end it.

When I was a boy in the 1950’s, I lived in a small town, one of whose residents was a man named Michael Valente, a recipient of the Congressional Medal of Honor for remarkable acts of heroism in World War I. His presence at parades and celebrations that were a commonplace at that time was emblematic of an optimism and gratitude readily expressed toward our fathers and uncles, many having returned from the Second World War. We had beaten formidable enemies and we were at the height of the “American Century.” When we played war games we did it with equipment our relatives brought home as souvenirs of war. To us kids, patriotism was a celebration of military might. But as we matured, we learned that the essence of patriotism wasn’t the exercise of power, it was the willingness to serve and sacrifice.

The President and His Attorney: A Bill of Particulars

Neither our president nor our attorney general has any first-hand experience with military service and the risks and hardships that our military men and women experience daily. Indeed, our president has no sense of service to America at all. He sees himself as a sun king to be served by America. Nor does the attorney general see his role as one of service either. He sees his function as imposing a rigid order to society. The former, driven by a visceral sense of self, the latter impelled by a stronger intellect, operate in a symbiotic relationship. Both are dangerously authoritarian, and both threaten the rule of law.

At the conclusion of the Constitutional Convention in 1787, Benjamin Franklin famously responded to a question about what the framers had just created, by remarking that it was “a republic, if you can keep it.” The constitutional mechanisms designed to ensure that result are limited government, enumerated functions and, most of all, separation of powers, or what more commonly is known as “checks and balances.” For this system to work it must have the trust and respect of the people, and to have that it must operate predictably and fairly, according to the rule of law, not the arbitrary rule of individuals. In our federal system, the principal agency intended to address that goal is the Department of Justice. But in this distressing year, the leadership of that department is not living up to its name.

The Attorney General has weakened national security and respect for the principle that no one is above the law, first and foremost, by falsely characterizing the Mueller Report’s findings as to probable cause regarding presidential misconduct, and foreign interference in our elections. He added to this misfeasance by denigrating evidence of the president’s threatening to withhold congressionally-authorized military assistance to the Ukraine unless that country served Trump’s personal interest in reelection, not the interests of the United States. That misrepresentation and similar statements with respect to the investigation of the former national security advisor, Michael Flynn, were also unfortunately consistent with the effort to lead the public astray about the scale of wrongdoing. The Attorney General’s rejection of the DOJ Inspector General’s report with respect to the investigation of Russian misconduct and the Trump campaign associates’ possible role in it also was both unprecedented and inappropriate. It also stood in stark contradiction of the findings of the national Intelligence Community and the bipartisan Senate Intelligence Committee. What’s more, his comments on pending investigations that he initiated not only violates very long-standing Departmental policy, but it smacks of the very act that led to the firing of former FBI Director James Comey and that kept Robert Mueller silent.

One of the functions of the Justice Department is to protect Americans’ right to vote. However, the current Attorney General has set the stage for voter suppression by making essentially unsupportable statements about mail and absentee ballot fraud when experience in a number of states shows just the opposite. Another core function of the Department is the protection of civil rights. In this period of racial disharmony, this Attorney General misrepresented his role in the repression of lawful and peaceful demonstrators at Lafayette Square and has offered nothing of a constructive nature with respect to eliminating systemic racial bias in criminal justice and policing.

The president wrongly claims that Article II of the Constitution allows him to do “whatever” he wants. The Attorney General’s exaggerated view of the “unitary executive” has aided and abetted him. As a result, this Department of Justice has given legal cover and comfort to the president by supporting his untenable declaration of a national emergency at the southern border and his attempts at ignoring congressional denials of requests for funding of his quixotic border wall and his unlawful repurposing of specifically-appropriated funds intended to support our military. Not content with this intrusion into Article I congressional authority, the Attorney General has intruded upon the Article III judicial function by arguing that, contrary to the Federal Rules of Criminal Procedure, a court has no role in determining the fairness of an attempt to dismiss a case of a defendant who had twice pleaded guilty. And, displacing career staff attorneys and their independent judgments, he has invaded the criminal sentencing proceedings of two presidential cronies, Roger Stone and Flynn, with lenient recommendations that were both unprecedented and greatly in contrast to the stringent sentencing recommendations generally made in cases where the defendants are members of minority groups.

Previous Attorneys General have greatly benefitted from the advice of career attorneys, especially those who have served during multiple administrations, and from appropriately aggressive and innovative United States Attorneys throughout the country. Of course, there will be disagreements with Main Justice where the Attorney General has the last word. But the current Attorney General has gone much further than normal. He has displaced the United States Attorneys in the nation’s two crown-jewel offices, those of the District of Columbia and the Southern District of New York and, in D.C. installing an acting U.S. Attorney loyal to him, who in turn, displaced the career attorneys who had prosecuted Messrs. Stone and Flynn. He attempted to do the same thing in the Southern District, misrepresenting the intention of the U.S. Attorney to resign and hoping first to name an interim U.S. attorney who had no experience in the District and then a permanent one who had no experience in prosecution. Geoffrey Berman, the U.S. Attorney who was ultimately dismissed noted in his denial of having intended to resign that he was concerned about the integrity of ongoing investigations, one assumes including those that involve the president’s lawyer and bank. While the Attorney General denied that there would be any tampering with such cases, he did state that he had a longstanding intention of keeping Berman’s office “in line,” and subsequent reporting has shown an animus that dated back to the Southern District’s prosecution of Michael Cohen, the president’s fixer.

Along the way, the career lawyers who prosecuted Stone and Flynn resigned from those cases and, in one instance, from the Department itself. The Attorney General failed in the attempted Southern District coup because a qualified career lawyer has ended up serving as the interim head of the office, and because the designated permanent choice is unlikely to be confirmed, if at all, before the November election. However, the Attorney General’s actions in the District of Columbia likely foreclose any investigation of presidential affiliates during the rest of the term, as does his importing U.S. Attorneys and other lawyers with whom he has close relationships to take over cases in districts with which they have no connection.

What We the People Can Do

When we turn to celebrating genuine patriotism on July 4th, we know what ordinary responsible citizens can do. They can speak out, petition their elected representatives to investigate and to act, and they can support responsible candidates for office including the presidency. And, as was the case with the brave career lawyers who resigned from cases and from the Department in the wake of political interference, we might look to the integrity of public servants — both in DOJ and elsewhere, like those within the National Security Council, State Department, Health and Human Services, and other agencies who raised legitimate questions about threats to national security — to blow the whistle where they see misconduct.

As presidential and DOJ reaction to these acts of courage has shown, these public servants are at great professional risk. Without discounting that risk, those at the Department of Justice are protected by specific provisions of the Justice Manual that command that “Department employees shall report to their supervisor any evidence or non-frivolous allegation that a Department attorney engaged in professional misconduct,” and by the Whistleblower Protection Act of 1989 that protects federal whistleblowers who report the possible existence of an activity constituting a violation of law, rules, regulations, or abuse of authority.

There are avenues open for reporting abuses including through Inspectors General, the Office of Professional Responsibility, the Office of Special Counsel, and Congress. There are avenues open for countering abuses and preserving personal integrity by refusing directives that violate one’s oath of office. And at a certain point it comes time to take a different path – resign and speak out.

When, on July 4th, we think of those who protect our country and its institutions we naturally think of our military. Let us also give a nod to those who serve in line functions at the Department of Justice and other agencies who, at substantial career risk, are willing to expose authoritarian misconduct. Call it what it is. They are keeping us free, too.

Eighty years after Franklin spoke, John Stuart Mill observed that “Bad men need nothing more to compass their ends, than that good men should look on and do nothing.” Thus, the greatest act of patriotism on this Fourth of July is for us to take our country back, get it out of the hands of autocrats and restore its health at home, its preeminent place in the world and, most of all, the rule of law that treats all of our people with dignity, equality, and mutual respect.

 

Editor’s note: Readers may also be interested in these earlier articles at Just Security.

Irvin McCullough and Tom Devine, Know Your Rights: Conversations with Congress

Nick Schwellenbach, Survivor’s Guide to Being a Successful Whistleblower in the Federal Government

Oona Hathaway and Sarah Weiner, Dissenting from Within the Trump Administration 

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.