Editor’s Note: This is the second part of a two-part series on what Justice Department lawyers should do when asked to participate in politically-motivated prosecutions or investigations. Part I can be found here.
Part I of this series established the dangerous track record of politically-motivated actions taken by the Justice Department at the direction of Attorney General Bill Barr – and at the instigation of President Trump. It described the likelihood that their weaponization of the Department’s law enforcement powers will escalate and be aimed at the President’s perceived opponents as the 2020 election approaches. It then explained the sources of law, ethical rules, and policies that prohibit the Department’s prosecutors from pursuing investigations and prosecutions that are, or even appear to be, politically motivated. As those authorities make clear, politically motivated prosecutions violate fundamental Constitutional rights and requirements, especially when they are accompanied by public statements by prominent government officials that presume the subjects’ guilt. These prosecutions are not only a threat to the Justice Department’s institutional integrity and credibility as a nonpartisan arm of democratic justice, but to our most basic democratic values: fundamental fairness in the criminal justice system and free and fair elections.
We will now explain how the Department’s career prosecutors should respond when they become aware of, or are asked to participate in, such actions – to protect the country and their own integrity.
The authorities discussed in Part I stand for the following key propositions:
- A prosecution or investigation violates due process when a government officer who oversees that investigation openly expresses political motives for official actions and animus toward the subject of the investigation or prosecution, or acts at the behest of someone who does (such as the President of the United States);
- A prosecution or investigation violates due process when a government officer creates a public narrative that defeats a subject’s presumption of innocence; and
- A prosecutor’s legal and ethical duties include both safeguarding the constitutional rights of the subjects of criminal investigations and maintaining the appearance that justice is being done.
When it comes to investigations that involve or significantly affect candidates in an upcoming election, these propositions operate in the context of the Department’s overarching duty to safeguard free and fair elections. This critical duty has historically been governed by guidelines aimed at preventing federal law enforcement functions from being used “for the purpose of giving an advantage or disadvantage to any candidate or political party.”
So what does this mean for prosecutors as they navigate their duties in connection with the fast-approaching November election? When this administration’s conduct is evaluated under the governing legal and ethical standards, it is clear that any prosecution specifically demanded by President Trump that implicates the election, and particularly any prosecution that involves or relates to Joe Biden, should be viewed by prosecutors as presumptively unlawful.
President Trump has repeatedly made or endorsed statements proclaiming Biden guilty of an assortment of crimes. In the same vein, Barr and Trump have both publicly pronounced the guilt of the 2016 Russia investigators who are the apparent subjects of John Durham’s ongoing criminal investigation. Prosecutions of – or public announcements of wrongdoing by – subjects who Trump has publicly impugned in this way (on his Twitter feed, at press conferences, at campaign rallies, and in campaign ads) almost certainly cannot comport with the dictates of due process. Justice Department prosecutors should therefore take action to stop any such investigations or prosecutions–unless they determine that the presumption of unlawfulness can be overcome, and the subjects can be afforded their due process rights.
Pursuing an investigation or a prosecution specifically demanded by Trump would be lawful only in narrow circumstances
No one is above the law, and it is of course possible that any person, and certainly any electoral candidate or officeholder – or a federal law enforcement or intelligence officer – could do something to warrant a criminal investigation. To be sure, the Department’s Inspector General did find serious procedural deficiencies by government personnel in the 2016 Russian interference investigation. Holding federal law enforcement officers and candidates for public office accountable to the Constitution and laws they are themselves sworn to or seeking to uphold are among the Department’s most important responsibilities. For that reason, if evidence came to light from nonpartisan or otherwise trustworthy sources (for example recorded calls, documentary evidence, firsthand witness testimony, reliable independent news reporting) demonstrating that a criminal investigation could establish probable cause that a person whose prosecution Trump has publicly demanded was legitimately engaged in a violation of federal law, pursuing such an investigation could be warranted.
Ensuring the legitimacy of any such investigation would, however, require at least the following: (1) recusal of all political appointees from the conduct and oversight of the investigation; and (2) action to ensure that the existence of the investigation is not disclosed to the public prior to the election or, if the investigation is not election-related, to ensure that the defendant’s presumption of innocence is not irrevocably prejudiced by public statements presuming guilt, from Trump or other officials. These precautions are derived from current Department policies requiring recusal by anyone who has the appearance of a political conflict, pre-indictment silence on investigations, and avoidance of actions that could affect an election.
However, Attorney General Barr’s directive that he should control all investigations and prosecutions of 2020 candidates, and his and Trump’s improper comments, effectively mean that no prosecution of Biden or anyone associated with him will satisfy these standards.
Refuse, Report, Resign: Guidance to Department Personnel if Asked to Participate in a Political Investigation or Prosecution
Justice Department personnel who are asked to participate in – or who have direct knowledge of – an investigation or impending prosecution that appears to be politically motivated, and who determine that the presumption of unlawfulness cannot be overcome and/or the necessary safeguards cannot be implemented, have a duty to take immediate corrective action. Carrying out or acquiescing in unlawful or unethical orders from their supervisors, whether they be politically appointed or career civil servants, would conflict with their oaths, the ethical guidelines they are bound to uphold, and most important, the Constitution they are bound to protect. So would standing by and doing nothing.
Specifically, they should:
Refuse to Participate
Under ethical and Department rules, prosecutors may not invidiously discriminate against any person or consider political beliefs and associations in deciding to initiate an investigation or seek charges. They also may not participate in prosecutions that violate the Constitution or other laws. Prosecutors tasked with working on an unlawful investigation or prosecution should, therefore, refuse to participate and explain in writing their reasons to their supervisor.
Report (aka Blow the Whistle)
Under ethical and Department rules that require the reporting of misconduct, refusing to participate in an unlawful investigation is necessary, but not enough. The same laws and ethical standards that require nonparticipation also create an affirmative duty for federal employees to report and (to the extent they are able) prevent misconduct.
As the Justice Manual makes clear, “Department employees shall report to their supervisor” any “evidence or non-frivolous allegation that” a Department attorney or law enforcement officer “engaged in professional misconduct.” Likewise, the ABA Model Rules require lawyers to report violations of the rules of professional conduct. “Misconduct constitutes professional misconduct when it relates to an attorney’s responsibility to investigate, litigate, or provide legal advice.”
Department personnel tasked with working on an unlawful investigation or prosecution should, at a minimum, notify their supervisors, the Office of Professional Responsibility (OPR), and the Office of Inspector General (OIG), and – if legally permissible consistent with their obligations to protect government privileges – Congress. As Aaron Zelinsky’s testimony demonstrated, Department personnel should not merely assume that their supervisors will report misconduct up the chain but should take it upon themselves to ensure that their report reaches OPR and OIG.
Department personnel may also report violations of law to the Office of Special Counsel (unrelated to Robert Mueller’s Special Counsel Office), which maintains confidentiality and is charged with reporting violations to other relevant authorities.
In all cases, the federal Whistleblower Protection Act offers protections for government employees who report certain kinds of wrongdoing, including violations of law and abuses of authority. Our organization, Protect Democracy, among many others, is available to assist Department personnel who wish to report misconduct in finding resources to guide them and counsel to represent them.
If the Department attempts to compel a prosecutor to participate in illegal conduct, she should resign and, if permitted by the rules of professional conduct governing attorney-client privilege, report to Congress and the public the reasons why. Even in circumstances in which Department personnel are not forced to participate in unlawful activity they have internally reported, they should consider resigning when such conduct is ongoing in their midst.
While volunteering to give up one’s livelihood in the service of a principle is a difficult step for most people, and may be practically impossible for some – and while it is critical for ethical Department lawyers to stay in their jobs and uphold their oaths when they reasonably can – resignations in protest of politically motivated investigations or prosecutions send a powerful public message and are one of the few mechanisms the public has for getting the information it needs to hold institutions accountable to the law. While they should be clear-eyed about the risks involved, lawyers who choose to take this step will find a community of Department alumni and others concerned with protecting the Department’s independence who are eager to assist them in their next moves, including our organization.
A Justice Department that weaponizes its prosecution powers in the service of a president’s reelection campaign and against political opponents, as Trump’s has done, poses a uniquely grave threat to the rule of law. The Attorney General is a critical actor in this drama. But he cannot accomplish this transformation alone. His ability to prosecute President Trump’s opponents or otherwise impugn them with the specter of criminal charges will likely require the acquiescence of the Department’s career prosecutors. They should not give it.
The participation of the Department’s lawyers in a politically motivated prosecution of Trump’s electoral opponent, or in any other case in which Trump has effectively conducted a public show trial on his Twitter feed or elsewhere, would be unethical and illegal. It would not only enable a grave danger to our democracy, it would also jeopardize these lawyers’ careers and standing in the legal community. As the Supreme Court has observed, “a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers.” Imbler v. Pachtman. There is a very real possibility that this administration’s abuses of power will come under future scrutiny in a variety of settings, to include the courts.
The Department’s prosecutors should ask themselves how their own actions will appear under such a spotlight and decide now what they will do to uphold their oaths of office, the Constitution, the standards of their profession, and their own invaluable reputations in the all-too-likely event that Barr unleashes the Department’s law enforcement powers for the purpose of interfering in the November election or other unconstitutionally vindictive reasons.
The Department’s prosecutors do not work for the Attorney General or the President; their oaths are to the Constitution and our laws. Protecting their institution and the role it occupies in our constitutional democracy, and honoring their own duty to follow the law, is the service to the country that they signed up for. Fulfilling that duty in this moment may be the most consequential action they ever take.
Image: Photo by Chip Somodevilla/Getty Images