In late spring of 1972, I was an assistant U.S. attorney for the District of Columbia. My certificate of appointment was signed by Attorney General John N. Mitchell and his deputy, Richard G. Kleindienst, who would go on to become President Richard Nixon’s next attorney general, days before five of the White House “plumbers” were arrested in the Watergate break-in.
A short while after that, I was ordered by my boss, Earl J. Silbert, who became the U.S. attorney for the District of Columbia, to go to court to block a Florida district attorney from disrupting the prosecution of the burglars. I was told simply to assure that “the Office,” as our component had traditionally been known in the D.C. legal community, would be able to prosecute the case. The court agreed, certain evidence was preserved, and Silbert and his team gained convictions of the defendants. Under vigorous pressure from the Silbert team to secure the maximum sentence, one of the defendants, James W. McCord Jr., confessed, implicating the White House and leading to the appointment of a special prosecutor. This in turn led to subsequent convictions, including those of Mitchell and other senior administration officials, and ultimately Nixon’s resignation.
All of this occurred as a result of a U.S. attorney faithfully doing his job — and taking on the very administration that appointed him.
Another crown jewel in the Justice Department is the U.S. attorney’s office for the Southern District of New York. That office is so assiduous in pursuing cases that its members think important to the administration of justice, particularly in the area of financial fraud, that it sometimes finds itself at odds with its bosses in Washington. But its rate of success in getting its way has led to its appellation as the “Sovereign District of New York.”
The lawyers in both the D.C. and Manhattan offices have been deeply inculcated by great U.S. attorneys, such as Silbert and Thomas A. Flannery in D.C., and Robert M. Morgenthau and Robert B. Fiske Jr. in New York. They knew always to adhere assiduously to the admonition of the Supreme Court in the signal case of Berger v. United States that the “United States Attorney is the representative not of an ordinary party ... but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.” All of the lawyers, from top to bottom, who worked in either of these offices acted accordingly.
Cut to the present. We now have a president who thinks that the Constitution allows him, as he has asserted, to do whatever he wants, and an attorney general who has aided and abetted him in repeated affronts to the rule of law. In the wake of the convictions of presidential cronies Roger Stone and Michael Flynn, the attorney general has intervened to undo and undermine the work of experienced career lawyers, leading those lawyers to withdraw from the cases or even resign. Barr also ousted U.S. attorney Jessie Liu, who oversaw the prosecutions, and replaced her with a member of his own staff, who then displaced the lead prosecutors in the office.
On Friday, perhaps in a move to get John Bolton’s damning revelations about the president off the front page, Barr moved to oust Berman, the U.S. attorney for the Southern District in Manhattan. Berman’s office prosecuted Trump’s former personal lawyer Michael Cohen and has pursued leads developed in the Mueller investigation, which was falsely discredited by the attorney general. He also opened an investigation into the president’s pal and current lawyer, the problematic Rudolph W. Giuliani. Berman refused to go, arguing with considerable force that because his appointment on an acting basis originates with the judges of the court, not the president, he can only be replaced by a Senate-confirmed successor. The president, however, used his power on Saturday to fire Berman.
The upshot of all of this is that the administration is subverting the rule of law — which should serve the interest of the people without bias or favor, not the personal interests of the president — in a clear attempt to favor associates of the president and insulate his own misconduct from scrutiny. You can bet that no minority defendant or incarcerated civil disobedient will get the same treatment from this Justice Department. Especially now, as the impartial administration of justice is at the forefront of public attention, we cannot afford the subversion by an autocratic regime of the faithful independence of the prosecutorial function.