Editor’s Note: This is the first part of a two-part series on what Justice Department lawyers should do when asked to participate in politically-motivated prosecutions or investigations. Part II can be found here.
Last month, federal prosecutor Aaron Zelinsky testified before the House Judiciary Committee about why he withdrew from the Roger Stone case. Even as the country has become accustomed to the sustained push by President Trump and Attorney General William Barr to transform the Justice Department from an independent law enforcement agency into the President’s personal law firm, Zelinksy’s testimony was remarkable. He recounted how he withdrew from the Stone case rather than sign on to a baldly political sentencing recommendation. In doing so, he modeled how a federal prosecutor should respond to direction from his politically appointed superiors to violate his oath of office and the Department’s Principles of Federal Prosecution: by refusing to comply with and blowing the whistle on their unlawful actions.
But Zelinksy also sounded an alarm when he testified that his career supervisor in the United States Attorney’s Office for the District of Columbia had encouraged him to go along with the recommendation. According to Zelinksy, his supervisor agreed that exercising political favoritism in the Stone case was unethical and wrong. Yet he advised Zelinsky that giving such favoritism to Stone “was not the hill worth dying on,” and that he should keep quiet rather than risk losing his job.
A Justice Department supervisor advising a line prosecutor to remain silent in the face of a politically motivated abuse of power is dangerously wrong. It is critical that the Department’s career prosecutors understand that – especially now.
As former career lawyers in the Justice Department, one a prosecutor in the Civil Rights Division and the other a veteran of the Office of Legal Counsel, we are concerned that the Attorney General is moving to extend his politicization of the Justice Department beyond defensive maneuvers to protect Trump and his friends from the consequences of their allegedly criminal actions – which are inexcusable abuses of power in their own right – to using criminal investigations and prosecutions as a weapon in the upcoming election, including by targeting Joe Biden. We are equally concerned that Barr will attempt to co-opt the Department’s career prosecutors in unlawful politically motivated actions.
The signs that Barr is poised to weaponize criminal prosecutions are not subtle.
- He has already used Department prosecutors at Trump’s behest in an attempted prosecution of former FBI Deputy Director Andrew McCabe, prompting a federal judge to liken the Department’s behavior to that of a “banana republic.” According to the New York Times, two of the career prosecutors who worked on the case “concluded that Mr. Trump’s relentless broadsides against Mr. McCabe had poisoned any potential jury, and they were worried about the appearance of a vindictive prosecution.” One of those prosecutors left the case and the other left the Department altogether. The Department eventually closed the case after a grand jury refused to approve charges.
- He has launched a criminal probe, led by political appointee John Durham, of the government personnel who pursued the 2016 Russian interference investigation even though the Justice Department’s Office of Inspector General has already concluded that the Russia investigation was properly predicated. The Durham investigation encompasses the so-called “unmasking” of former national security adviser Michael Flynn, an act that Trump has explicitly attempted to link to Biden, without evidence. As Politico reported last year, “[t]he emerging focus of the Barr-Durham investigation – the CIA and intelligence community’s work with the FBI on the Russia probe – emphasizes the increasingly blurred lines between politics and law enforcement in the Trump era.”
- He is taking purported evidence from Trump’s personal lawyer, Rudy Giuliani, about allegations that Biden committed crimes in Ukraine – allegations that have been thoroughly discredited.
- He has issued an internal Department memorandum giving himself exclusive authority to initiate and pursue criminal investigations of political candidates. As former Acting Attorney General Stuart Gerson and one of us has explained, “in Barr’s hands, the new policy is a signal that he is moving to eliminate the possibility that ethical career staff will interfere in his plans to investigate [Biden].”
- In connection with each investigation, Barr has acted in accordance with President Trump’s wishes, overlooking Trump’s improper public demands that the subjects be prosecuted, and in spite of Trump’s – and Barr’s own – repeated public statements presuming their guilt. Indeed, Trump has time and again pronounced Biden guilty of “treason” and other unspecified crimes, calling for him to be sent to prison. For his part, Barr has said the 2016 Russian interference investigation was “one of the greatest travesties in American history” and likely involved criminal conduct by investigators and intelligence community personnel, who tried to “sabotage” Trump’s presidency. These claims are absurd from a factual and legal perspective, and they fly in the face of the Justice Department’s obligation to ensure the fair administration of justice.
To assist our former colleagues in making what could be career-defining decisions about their own roles in these matters, the remainder of Part I of this two-part series provides an analysis of the law, ethical standards, and Justice Department policies on politically motivated prosecutions. It argues that criminal investigations tainted by political motivations and other actions (such as guilt-presuming public comments by government officials) that undermine a subject’s right to a fair process or a fair trial are unconstitutional and inconsistent with the ethical obligations of Justice Department Prosecutors. Given the ongoing public interference by Barr in investigations and, in particular, the internal memo granting him exclusive authority over all potential criminal investigations of political candidates, any prosecution arising out of Durham’s investigation –or of Biden –would meet that criteria.
Part II explains that Department prosecutors who encounter these presumptively unlawful prosecutions should respond as follows:
- By refusing to participate;
- By reporting (both internally and outside the Department if legally appropriate) the investigations or prosecutions as misconduct;
- And by resigning if doing so is necessary to protect their professional integrity and comply with the law.
While the Justice Department’s prosecutors are obliged to carry out the lawful agenda of its political leadership regardless of their personal views, their primary duty is honoring their own oaths to uphold the law and carrying forward the Department’s mission to deliver equal and nonpartisan justice. Prosecutors cannot break the law – or enable misconduct – in order to do what the administration wants, and their actions will follow them long after the Trump administration has ended.
Given the degree to which this administration has already politicized the Department and tainted ongoing investigations, the Department’s prosecutors should be immediately ready to follow in Zelensky’s footsteps when asked to act unlawfully or ignore apparent abuses of authority. The Department’s institutional integrity, the integrity of our next election, and their own reputations and future career prospects will depend on what they do.
The Laws and Rules Prohibiting Political Prosecutions
A federal prosecutor’s overarching duty is “not that [she] shall win a case, but that justice shall be done.” Berger v. United States. A civil servant’s oath of office likewise requires her “to support and defend the Constitution of the United States.” Federal prosecutors are thus much more than lawyers for a party to a dispute. As representatives of “a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all,” they are the guardians of the constitutional and legal rights of everyone who crosses their paths, and of our constitutional system of administering justice.
The Constitution, the Justice Department’s Principles of Federal Prosecution, and the ethical standards governing the conduct of prosecutors together prohibit a prosecutor from pursuing an investigation or prosecution that is – or even appears to be – politically motivated, or that violates the accused’s right to fundamental fairness in the administration of justice.
Article II of the Constitution
Article II sets out the powers and duties of the presidency and requires the president to oversee federal agencies and exercise federal power in the public interest. President Trump believes that the executive power found in Article II of the Constitution gives him the power to do “whatever [he] wants,” but he is wrong. Article II does not confer monarchical powers, but instead embodies the profound presidential obligation to “take care” that the laws are “faithfully” executed. The president’s oath, also found in Article II, likewise requires that the president “faithfully” execute the office. This is a fiduciary duty that prohibits the president from weaponizing the Justice Department – the government’s primary law enforcement agency – to serve his personal interests.
On the contrary, this fiduciary duty to act faithfully requires the president to safeguard the Department’s independence from political influence and to refrain from interfering in specific party enforcement matters to further the president’s own interests. The president violates this duty when he or she comments on the status of criminal investigations – or the guilt or innocence of the subjects of those investigations, or directs the prosecution of particular individuals, particularly to benefit himself or herself. The Take Care Clause and the oath of office also require the president to uphold the Constitution’s other provisions, namely the Bill of Rights, which in turn further limits presidential authority (as discussed below).
When a president flouts these Article II duties, it carries special significance for the Justice Department’s prosecutors, who take their own oaths of office and who stand in the president’s shoes when exercising the Department’s prosecutorial discretion. Indeed, the prosecutorial discretion exercised by Department attorneys, as described in its Principles of Federal Prosecution, “exists by virtue of the prosecutor’s status as a member of the Executive Branch, and the President’s responsibility under the Constitution to ensure that the laws of the United States be ‘faithfully executed.’”
The Due Process Clause
The foundation of the American criminal justice system is “due process of law,” which requires law enforcement officers and prosecutors to safeguard “fundamental fairness” in the administration of justice – that is, the presumption of innocence and a fair process by which an individual is investigated, charged, and tried. If an investigation or prosecution does not – or cannot – provide due process for its subjects, the Department’s lawyers are duty-bound to stop it in its tracks. Among the myriad ways the government can violate due process are through “vindictive” uses of its law enforcement powers and through public comments on the purported guilt of a subject that impair the presumption of innocence and right to a fair trial.
A vindictive investigation or prosecution is a due process violation “of the most basic sort.” Bordenkircher v. Hayes. The Supreme Court has held that prosecutors cannot pursue cases out of “vindictiveness,” meaning that they cannot use their law enforcement powers to punish someone solely out of animus or “solely from [an] exercise of a protected legal right.” United States v. Goodwin. Vindictiveness can be shown through direct evidence, “such as a statement by the prosecutor evidencing the vindictive motive.” It can also be shown when: “(1) the prosecutor harbored genuine animus toward the defendant, or was prevailed upon to bring the charges by another with animus such that the prosecutor could be considered a ‘stalking horse,’ and (2) [the defendant] would not have been prosecuted except for the animus.” United States v. Koh.
The denial of a trial by an impartial jury – a right the Supreme Court called the “most priceless” safeguard for the preservation of liberty, Irvin v. Dowd – also violates due process, in addition, of course, to the Sixth Amendment. Likewise, the Supreme Court has made clear that preserving the presumption of innocence “is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams. An investigation in which government personnel, most especially the President or the Attorney General, say or do things that compromise the subject’s presumption of innocence in the eyes of a jury denies this fundamental right. Because courts must “carefully guard against dilution of the principle that guilt must be established by probative evidence” presented to the jury in the courtroom, id., courts can set aside indictments and verdicts on due process grounds when the government improperly comments or creates publicity in a manner that prejudices the accused’s presumption of innocence, including by “offering unsolicited personal views on the evidence.” United States v. Young.
The Justice Department recognizes the danger of treading on due process and impartial jury rights in its media policy, which largely prohibits Department personnel from commenting on ongoing cases in order to avoid undue prejudice to the subjects of criminal investigations. No comments could be more prejudicial to a subject’s due process rights than those that come from Trump himself because, as the Supreme Court has recognized, the President “possesses an extraordinary power to speak to his fellow citizens and on their behalf.” Trump v. Hawaii. An investigation launched against someone whom the president has already publicly denigrated and pronounced guilty, thus presumptively poisoning the prospective jury pool, would be virtually impossible to conduct in a manner that is consistent with a prosecutor’s duty to protect the rights of the accused to due process and a fair trial. While courts can sometimes cure prejudice by changing the venue for a trial, or through a jury selection process that removes people who have heard too much about a case, it is difficult to imagine a means of escape from the prejudicial publicity generated by the President of the United States trying a case on Twitter.
The First Amendment
Our democracy is founded on every person’s right to dissent against the government and freely express – and associate with others who share – their political views. The First Amendment safeguards this bedrock principle by prohibiting the government from retaliating against individuals for their political views or affiliations. Heffernan v. City of Patterson, N.J. A prosecution brought in retaliation for the subject’s political expression clearly violates the First Amendment. Hartman v. Moore. The Supreme Court has yet to reach the question of whether a retaliatory investigation (prior to or in lieu of filing charges) violates the First Amendment on its own, but this is a logical extension of the Court’s decisions on retaliatory prosecutions. The government’s use of its law enforcement powers to launch a criminal investigation to punish political expression can be as damaging as the filing of charges, especially if the investigation is publicly announced. For that reason, the majority view in the appellate courts is that retaliatory investigations do violate the First Amendment.
Justice Department Rules and Prosecutorial Ethics
Prosecutors’ ethical duties, which they must follow in order to maintain their law licenses, are in key respects broader than their legal duties. They require prosecutors to maintain fairness, and the appearance of fairness, in the legal system, in addition to adhering to the strict letter of the law.
Accordingly, the Justice Department’s Principles of Federal Prosecution are founded on the premise that the Department’s prosecution power should be exercised in service of the “fair, evenhanded administration of the federal criminal laws.” The federal government’s Standards of Ethical Conduct for Employees of the Executive Branch also require all employees to “act impartially and not give preferential treatment to any private organization or individual” and to “endeavor to avoid creating the appearance that they are violating the law or the ethical standards.”
Taken together, the various ethical rules and standards that govern prosecutors’ conduct collectively prohibit prosecutors from advancing politically motivated investigations or those that appear to be politically motivated. The command to ensure “fair” and “evenhanded” justice facially conflicts with selecting defendants based on their political views or their opposition to any particular political leader—or because the President wants them to be prosecuted to advance his personal political agenda. In fact, the Department’s Justice Manual specifically designates “political association, activities, or belief[s]” as impermissible considerations in initiating or declining criminal charges. Indeed, the principle that such considerations are improper was the basis for the Office of Inspector General recent reviews of the handling of the 2016 investigations of the Clinton email case and the Trump campaign’s role in Russian interference in the 2016 election.
The American Bar Association’s (ABA) Criminal Justice Standards for the Prosecution Function likewise contain multiple provisions that counsel prosecutors not to act – or appear to act – based on the political views, associations, or beliefs of a subject, or their own (or those of their political superiors). These include the overarching admonition that: “A prosecutor should not use . . . improper considerations, such as partisan or political or personal considerations, in exercising prosecutorial discretion.” The ABA’s standards also condemn prosecutors making, causing, authorizing, or condoning “public statement[s] that the prosecutor knows or reasonably should know will have a substantial likelihood of materially prejudicing a criminal proceeding or heightening public condemnation of the accused.”
Trump and Barr’s actions toward and statements about Joe Biden and the subjects of the Durham investigation run afoul of the constitutional provisions and ethical standards governing the conduct of Justice Department lawyers outlined above. The magnitude of these violations would render nearly any potential prosecution of the targets of this conduct fatally compromised, and the Department’s prosecutors should treat any such action as presumptively unlawful.
As noted above, President Trump has both demanded prosecutions of Joe Biden and the agents who participated in the 2016 Russia investigation, and repeatedly and publicly proclaimed them guilty. Barr has likewise commented on the ongoing Durham investigation multiple times and opined that its subjects have committed crimes. In addition, Trump has openly complained that the Russia investigation was politically motivated, in spite of the Justice Department Inspector General’s contrary finding, and denounced the political opinions privately expressed by some of the investigators, and even the political leanings of their family members.
With all of this in mind, any prosecutor who participates in an investigation or prosecution brought against a federal agent involved in the Russia investigation, Joe Biden, or any other perceived or actual political opponent of the President who he or the attorney general have publicly denounced, will be in serious jeopardy of violating her oath to uphold Article II, the due process clause, and the First Amendment. Likewise, any prosecution or official announcement of wrongdoing against anyone Trump and Barr have publicly impugned would likely create the appearance of impropriety under the rules and ethical standards governing the Department’s prosecutors.
In sum, Attorney General Barr’s politicization of the Justice Department by interfering directly in (or instigating) investigations and prosecutions in ways that favor President Trump and seek to punish his perceived opponents is prohibited by several provisions of the Constitution and the ethical norms that guide prosecutors in discharging the duties of their profession. Barr has come under sustained criticism for his actions and calls for him to face various forms of accountability, from impeachment to professional disciplinary action.
But Barr will not be alone in facing accountability if the Department’s prosecutors acquiesce in or enable his efforts to pursue unconstitutional politically motivated prosecutions. As difficult as it can be to stand up to illegal conduct by the nation’s chief law enforcement officer and his politically appointed subordinates, the Department’s career personnel must answer to the Constitution and their oaths. They are not free to be accomplices or bystanders in the face of clear assaults on the rule of law, and their duties are magnified by the role politically motivated prosecutions could play in undermining the fairness of the upcoming election.
In the next part of this two-part series, we lay out a roadmap for how prosecutors should analyze a presumptively unlawful investigation or prosecution and what they should do when faced with a request to participate in such a case.