The DOJ attorney’s guide to Trump’s Washington
Three things to know about prosecutorial independence in coming years
Federal prosecutors at the Department of Justice face a daunting task ahead.
On the campaign trail, Donald Trump routinely promised to use the department to investigate and prosecute his personal and political enemies. Some of his nominees have made similar promises.
Directing prosecutions as a political tool is — obviously — illegal; any court in the country should agree. If Trump seeks to follow through on these promises, that could put DOJ attorneys in an unenviable position, trapped between the president on one side and the law and ethics on the other.
This tension is heightened by the Supreme Court’s decision in Trump v. United States, which gave the president a new type of criminal immunity for certain official acts. But DOJ attorneys have no such immunity. They remain bound by a number of rules, and the consequences for breaking those rules can be significant.
So what are these attorneys to do?
Because lawyers tend to appreciate reference materials, here are two resources on how to navigate the coming dilemmas that may be helpful to bookmark and refer back to in the coming months.
Supporting and Defending the Constitution: A DOJ attorney’s guide to upholding ethical obligations and the rule of law. This guide provides an overview of the sources of authority that govern federal prosecutors, options for reporting suspected misconduct, and possible consequences for failing to comply with ethical obligations.
Protecting the Department of Justice from Political Interference after Trump v. United States: Exploring the constitutional principles at stake. This paper explores the reasons to preserve the norm of DOJ independence in specific enforcement matters following Trump v. United States, and explains why this norm is not only constitutional in character, but vital to the rule of law and to our democracy.
For everyone else who would rather not read long reports, there are the three key takeaways.
1. Any orders or requests to investigate and prosecute political enemies will be unlawful
The Constitution and federal law place limits on how the DOJ may select targets for investigation or prosecution.
As the attorney guide explains:
Even if it is possible to articulate some basis for an investigation or prosecution — as will often be the case — the selection of a particular target can violate various provisions of the Constitution if that selection is based on the target's identity or lawful conduct.
For instance, if DOJ selects somebody for prosecution based on criticism of Trump or his policies, that could run afoul of First Amendment protections. Similarly, selection based on a bare desire to harm the target could violate the Equal Protection Clause. And even prosecutions that aren’t necessarily biased at the outset may still become constitutionally infirm due to “governmental misbehavior” during the course of the prosecution.
Further, if the president were to interfere in a specific matter against a specific target, he may run afoul of the Take Care Clause — a structural feature of our democracy meant in part to protect the executive branch from usurping power that properly belongs to Congress.
As the second paper explains, we should be careful not to read the Trump v. United States decision to do more than it actually does:
T]he majority’s language is circumspect, saying only that the president may “discuss matters with DOJ officials,” and its holding is limited, for now, to the question presented in the case: whether and to what extent a former president is immune from criminal prosecution. The majority stopped short of declaring that the president has the power under the Constitution to direct the Department of Justice to investigate and prosecute specific individuals.
And the decision certainly does not say that the president’s power over DOJ — whatever that may turn out to be — overrides other provisions of the Constitution, including those found in the Bill of Rights.
2. DOJ attorneys are not immune — even when Trump is
Federal prosecutors are bound by the Executive Branch Standards of Conduct, the DOJ Standards of Conduct, conflict of interest and financial disclosure statutes, the Hatch Act, and a variety of other regulations. And as attorneys licensed to practice law, they are bound by their state’s rules of professional responsibility — essentially, a very specific code of conduct for lawyers. Being sanctioned by a court or a state bar could devastate an attorney’s career — to say nothing of the possibility of facing civil liability or, in the most extreme cases, criminal charges.
In criminal prosecutions, the most severe punishments are often reserved for the kingpin, while the lower-level foot soldiers are given sentences that reflect their more limited role in the enterprise. The Supreme Court’s recent immunity decision flips that principle on its head: If misconduct occurs at the Justice Department, the president could be immune, while the line attorneys who carried out his directives could be left holding the proverbial bag.
We should be clear: DOJ attorneys may end up between a rock and a hard place after the Supreme Court removed one of the major incentives for the president to abide by the law. That’s the real problem for federal prosecutors. As the guide notes, “DOJ attorneys now work within a system in which the head of the executive branch enjoys a special level of immunity for rulebreaking, but they do not.”
Even if it feels unfair that they could take the blame — and bear the consequences — for wrongdoing ordered by the president or his allies, that’s precisely what could happen.
3. When federal prosecutors and other DOJ staff honor their oaths and their ethical obligations, the legal community must have their backs
Despite all these challenges, most DOJ attorneys will put patriotism and the rule of law over politics and continue to serve the public interest, regardless of what happens in the White House. But they need — and deserve — the support of the legal profession and civil society writ large when they do so.
That’s in part why Protect Democracy published Supporting And Defending the Constitution — to provide a resource as DOJ attorneys navigate ethical challenges in the months and year ahead.
But there’s more we can all do.
Writing recently in the The New York Times, the co-founder of the DOJ Gender Equality Network (an employee-run group within DOJ) had a number of practical suggestions:
Data-removal companies that specialize in taking down personal information online could offer free or discounted plans to federal employees who are being harassed or at risk of harassment. . . Concerned citizens could urge their elected representatives to promote legislation that protects civil servants and oppose draconian bills that would harm them. Those with money to spare could donate to organizations that work to protect public servants.
And, of course, expert service providers like lawyers, mental health professionals, and others can offer low- or no-cost services to federal employees who need them.
Whatever the next administration has in store for the Justice Department, federal prosecutors are going to have to uphold their legal and ethical obligations. It’s up to all of us to ensure that they don’t do so alone.
I appreciate the effort to proactively remind, educate, and provide resources for those who may need it. I feel deeply for the career DOJ employees in this moment. What are examples of orgs that work to protect public servants?
Absent effective forms of deterrence, many prosecutors will follow unlawful orders. This means promptly naming and shaming those who do, and letting them know their choices will not be forgotten. Are you aware of efforts to collect and publicize examples of unethical conduct?