Since Bell’s tenure, attorneys general in Democratic and Republican administrations alike have issued largely similar policies to adhere to the course Bell mapped for the department to live up to its promise of impartial justice. All have observed a “wall” between the White House and the Justice Department on criminal cases and investigations. While it is appropriate to communicate about administration policies and priorities, discussion with the White House about specific criminal cases has traditionally been off-limits. Presidents and department leaders from both parties have recognized that for case decisions to have legitimacy, they must be made without political influence — whether real or perceived. Implementation of these restrictions has not always been perfect, but the department’s independence has remained honored and unquestioned.
While the policy is ostensibly still in effect, it is a hollow ode to bygone days. From virtually the moment he took office, President Trump has attempted to use the Justice Department as a cudgel against his enemies and as a shield for himself and his allies. He ran off Jeff Sessions after Sessions’s recusal in the Russia investigation rendered Sessions useless to protect him. The president has attempted to order up investigations of his perceived political enemies and enlist the department to protect his friends. With every blow, the wall of Justice independence has wobbled a bit more. This week, it teetered on the verge of collapse.
The facts are well known: After federal prosecutors in the Roger Stone case filed the department’s sentencing memorandum, the president publicly attacked Justice’s position as “horrible and very unfair.” He called for prosecution of the “real crimes … on the other side,” a mantra that has become so commonplace from him that it goes largely without comment. The prosecutors were ordered by Justice Department leadership to significantly cut their recommendation; they refused, and all four resigned from the case, with one quitting his job entirely.
This is not how the department is supposed to operate. Back-and-forth between prosecutors and department leadership about a high-profile matter is not itself unusual. But for Justice leadership to order the reversal of a publicly filed sentencing recommendation in a politically sensitive case is unprecedented. As a close friend of the president who was convicted of lying and obstructing justice in the investigation of the president’s campaign, Roger Stone couldn’t be more intertwined with the president. Politicization of the department doesn’t hinge on whether the president’s wishes are articulated, though with Trump they frequently are. Regardless of whether the decision to reverse the prosecutors was made before the president tweeted, action in anticipation of the president’s reaction is as dangerous as action in response to it.
Moreover, the sentencing reversal wasn’t an isolated incident. It followed a disturbing trend that includes: a four-page memorandum distorting the findings of the Mueller investigation and gratuitously absolving the president of obstruction of justice; a public rejection of the Justice Department inspector general’s findings regarding the propriety of opening the Russia investigation; repeated echoing of the president’s politically charged rhetoric undermining law enforcement and the intelligence community; and the president’s personal lawyer being set up with a special avenue to funnel dirt to the department about the president’s political rival.
After the four prosecutors resigned from the Stone case, Trump viciously attacked them, took a swing at the sentencing judge (perhaps laying the groundwork for a pardon), accused former special counsel Bob Mueller of committing perjury and then congratulated the attorney general for “taking charge of a case that was totally out of control.” In response to the ensuing public firestorm, department leadership complained that the president’s tweets were making things difficult for them, but it is the career prosecutors whom Trump continues to malign.
Tellingly, the president responded Friday, rejecting the long tradition of Justice Department independence. He insisted that he could direct criminal cases in the midst of protesting that he hasn’t, revealing yet again that he regards the department as his personal grudge squad.
The Justice Department is not a tool of any president to be used for retribution or camouflage. In all of government, the Justice Department uniquely functions in a trusted bond with Americans to dispense justice without fear or favor. Over the almost three decades that I served at the department, through Democratic and Republican administrations, I witnessed lawyers across the country embracing their responsibility to do their jobs in a manner that engendered the trust of the people they served. That is what it means to represent the people of the United States.