Being a career lawyer in the Justice Department must not be much fun these days. President Trump routinely vilifies the department’s work, orders its lawyers to investigate his political enemies and makes ridiculous, unsustainable arguments (e.g. immigrants are causing a crime wave, which doesn’t exist). More demoralizing, Justice Department lawyers are sent into court and asked to take losing positions — in some cases, positions that don’t meet the straight-face test.
The Justice Department has lost repeatedly on the Muslim ban and been beaten on the government’s reprisals against so-called sanctuary cities. The Justice Department was ripped in federal court on Monday for making an unserious argument that foreign emoluments, explicitly banned by the Constitution, aren’t really banned unless they are bribes. Three Justice Department lawyers took their names off a brief arguing that the government would no longer defend the Affordable Care Act. In addition, The Post reports: “Joel McElvain, who has worked at the Justice Department for more than 20 years, submitted his resignation letter Friday, the morning after Attorney General Jeff Sessions notified Congress that the agency will not defend the ACA.”
On Tuesday, the Justice Department lost the most significant antitrust case it has brought in years. The New York Times reports that a federal court approved the $85.4 billion deal merging AT&T and Time Warner:
The judge, Richard J. Leon of United States District Court in Washington, said the Justice Department had not proved that the telecom company’s acquisition of Time Warner would lead to fewer choices for consumers and higher prices for television and internet services.
The ruling is a major setback for the Justice Department and its antitrust chief, Makan Delrahim, whose decision to sue to block the merger broke with convention. Deals such as this one, in which the two companies are in related industries but do not produce competing products, are usually approved by federal regulators [commonly called a vertical merger].
The judge warned the government “not to try to seek a stay, saying it would hurt the defendants, which had already gone through an 18-month regulatory and legal battle for their review. The companies face a June 21 deadline to close their deal.”
The case drew attention beyond antitrust circles because Trump lashed out against the deal, apparently because of his hatred of CNN News, a Time Warner company. The Justice Department insisted Trump hadn’t influenced the decision, but the slapdown by the court suggests that the department’s lawyers either have exceedingly poor judgment or were trying to please their boss. (Rudolph W. Giuliani first said that Trump “denied” the merger, then backtracked to say “he didn’t interfere.”)
If you believe that Trump, as he has done with the Russia investigation, reached down into the Justice Department to try to influence its enforcement of a specific matter, consider this a win for the apolitical justice system and the separation of powers.
For the Justice Department, the antitrust case represents another high-profile loss in which the department’s judgment and credibility have suffered seriously. Before this president arrived, it has always been an honor to work in the Justice Department; the department has attracted the best and the brightest, those dedicated to public service. Courts expect and to an extent have presumed that Justice Department lawyers conduct themselves honorably and with an eye not simply toward winning, but with the aim of achieving justice. That is rapidly changing,
In July 2017, former acting attorney general Sally Yates wrote, ” The Justice Department is not just another federal agency. It is charged with fulfilling our country’s promise of equal and impartial justice for all. As an agency with the authority to deprive citizens of their liberty, its investigations and prosecutions must be conducted free from any political interference or influence, and decisions must be made based solely on the facts and the law.” She explained that independence from the White House on specific matters “is essential for the career men and women to be able to do their jobs. I served in the Justice Department for over 27 years, the vast majority as a career prosecutor in both Democratic and Republican administrations. I know from firsthand experience how seriously the career prosecutors and agents take their responsibility to make fair and impartial decisions based solely on the facts and the law and nothing else.”
In short, attorneys who could be making a lot more money in private practice don’t go work at the Justice Department to make lousy, losing arguments and jump when the president barks commands. No wonder the administration cannot fill top jobs (e.g. the No. 3 spot). Now it is a question as to whether the department will experience the same exodus of career employees as the State Department did. (The Justice Department has already lost McElvain, a highly acclaimed attorney who has been honored by the department in the past.) If so, the department will be one more victim in the Trumpian effort to destroy competent, corrupt-free governance. The rule of law that protects all Americans from capricious government officials will have suffered another setback.