The Justice Manual — the DOJ’s rulebook for its lawyers — states that “the rule of law depends on the evenhanded administration of justice”; that the Department’s legal decisions “must be impartial and insulated from political influence”; and that the Department’s prosecutorial powers, in particular, must be “exercised free from partisan consideration.”All DOJ lawyers are well-versed in these rules, regulations, and constitutional commands. They stand for the proposition that political interference in the conduct of a criminal prosecution is anathema to the Department’s core mission and to its sacred obligation to ensure equal justice under the law.
Especially in a case involving an associate of the president convicted of conduct involving the president’s campaign, such conduct is beyond the pale and unprecedented. The former employees wrote that “it is unheard of for the Department’s top leaders to overrule line prosecutors, who are following established policies. … It is even more outrageous for the Attorney General to intervene as he did here — after the President publicly condemned the sentencing recommendation that line prosecutors had already filed in court.”
“We support and commend the four career prosecutors who upheld their oaths and stood up for the Department’s independence by withdrawing from the Stone case and/or resigning from the Department,” the letter stated. The former employees ask for Barr to resign, but knowing this surely will not occur, they seek a different objective. “Our simple message to them is that we — and millions of other Americans — stand with them,” they wrote. “And we call on every DOJ employee to follow their heroic example and be prepared to report future abuses to the Inspector General, the Office of Professional Responsibility, and Congress; to refuse to carry out directives that are inconsistent with their oaths of office; to withdraw from cases that involve such directives or other misconduct; and, if necessary, to resign and report publicly — in a manner consistent with professional ethics — to the American people the reasons for their resignation.” They also call on the courts and Congress to “protect from retaliation those employees who uphold their oaths in the face of unlawful directives.”
I suspect the number of signatories will soar in the days and weeks ahead. “A lot of DOJ alumni are concerned about how Barr has permanently harmed public confidence in the department,” explains former prosecutor Renato Mariotti, one of the signatories. “The sheer number of signatures is surprising, given that many DOJ alumni represent clients adverse to the department.”
Noah Bookbinder, now head of the Citizens for Responsibility and Ethics in Washington and a former trial attorney, also signed the letter. He told me that “the outrageousness of the intervention hasn’t been fully understood by the public yet, and I hope this letter will help the magnitude of it start to break through.” I asked why we have not seen more resignations. “It’s a big commitment to quit your job and alter your career,” Bookbinder responded. “I think many at DOJ have believed that they could do more good staying in place and doing their jobs with integrity. I think they’ve also believed that criminal prosecutions might be immune from political intervention. It’s obviously no longer looking that way.”
The letter is noteworthy not only for the number of signatories and the strength of its condemnation of Barr but also for recognizing an often-forgotten aspect of governance: Nothing gets done in the executive branch without a lot of people being “in the loop,” as former ambassador to the European Union Gordon Sondland put it, and without the day-to-day work of both career professionals and sub-Cabinet political appointees.
Barr does not write the sentencing memos or carry out investigations personally or write briefs or make arguments to courts. If underlings were willing to say no when asked to engage in unethical and politically influenced action, Barr and President Trump would still have the bully pulpit, social media and an army of conservative media goons to harass and make miserable the lives of Trump opponents. However, unmeritorious cases would not be brought, specious arguments would not be made, and political vendettas would not be carried out, all in violation of Justice Department guidelines, professional rules of conduct, and the fair and equal administration of justice.
“The DOJ statement is extraordinary,” former prosecutor Mimi Rocah, who signed the letter, told me. “Usually buttoned-up and wary of calling attention to themselves, more than 1,100 bipartisan [attorneys] with hundreds of years of combined service under dozens of attorneys general in a very short time signed this statement calling for AG to resign.” She added, “It’s a sign of the fear about Barr (and Trump’s weaponization of DOJ as a political tool).”
The actions of the four prosecutors last week should embolden attorneys to resist suspect orders and put superiors on notice that their orders will not be followed blindly. Challenging line attorneys to defend the rule of law and praising them when they do so are among the most effective means of trying to hold the line against an authoritarian and corrupt chief executive. It would be even better if the American Bar Association, state bar authorities and courts weighed in as well.
UPDATE: The ABA did put out a statement, albeit one that does not mention Barr, Trump or Stone by name. “The American Bar Association steadfastly supports judicial independence and the sound exercise of prosecutorial discretion. Public officials who personally attack judges or prosecutors can create a perception that the system is serving a political or other purpose rather than the fair administration of justice,” ABA President Judy Perry Martinez said in a written statement. “It is incumbent upon public officials and members of the legal profession, whose sworn duty it is to uphold the law, to do everything in their power to preserve the integrity of the justice system.”