The Politicization of the Justice Department

I find that rules of thumb based on experience are a useful way to make sense of the world—at least as a starting point. One of my rules of thumb about Trump is that if accuses his political opponents of some nefarious act, you can be sure that Trump is either doing or planning to do the same. For years Trump has accused Democrats of “weaponizing” the criminal justice system. True to my rule of thumb, Trump is doing this himself—by turning the full resources of the Department of Justice on his enemies.

The examples are legion. The U.S. Attorney’s Office in the Northern District of New York (headed in a legally questionable way by a Trump hack whose re-appointment that the Judges refused to renew) has begun a Grand Jury investigation of New York Attorney General Letitia James. What are they investigating? From subpoenas, it appears that they are investigating whether James violated Trump’s civil rights by filing a lawsuit against Trump for fraud in his business dealings. That is a lawsuit, may I remind you, that resulted in a verdict that Trump and his son’s had indeed committed fraud. The investigation also focuses on a lawsuit involving the National Rifle Association and its longtime leader Wayne LaPierre—again one that James successfully pursued.

The Attorney General also appointed Ed Martin (an even worse political hack whose behavior as U.S. Attorney in DC was so bad that even Republicans refused to confirm him) as special counsel to investigate both James and Senator Adam Schiff for mortgage fraud. The alleged crime: both James and Schiff are alleged to have claimed two residences as their primary residence in seeking mortgages. For Schiff, this seems like a silly allegation: He does indeed have two primary residences—one in Maryland (where his family lives) and California (where he lives while back in his home state,) Surprisingly, Ed Martin doesn’t seem interested in reviewing whether any Republican members of Congress have done the same thing.

The Department of Justice has also announced that prosecutors were going to a Grand Jury to address allegations that Trump’s opponents conspired to falsely accuse him of colluding with Russia in the 2016 election. This is despite the fact that this issue has already been the focus of several investigations—most notably by the Senate Intelligence Committee, the Mueller investigation and the Durham investigation. The Durham investigation looked at this precise allegation, with a focus on an email that is now viewed as the “smoking gun” by Tulsi Gabbard. Durham was not able to confirm that the email was authentic—and not a Russian forgery.

All of these cases are remarkably weak and would never be brought by a professional prosecutor. If charges are brought, I have no doubt that all of those targeted will be acquitted. But damage will still have been done—mounting a criminal defense or just responding to an investigation are very expensive endeavors.

Those of us living in Arizona between 2004 to 2010 know the dangers of politicized prosecution all too well. The Maricopa County Attorney at the time, responsible for criminal prosecutions in the largest county in Arizona used his office to destroy political enemies, and filed malicious and unfounded criminal charges. During a dispute with the Maricopa County Board of Supervisors he brought criminal cases against two Supervisors. In one case he obtained an indictment that included 118 felony and misdemeanor courts largely focused on alleged financial disclosure issues. After the court dismissed the charges as unwarranted, he filed a second indictment.

In the case of the other supervisor, a Judge appointed by the Arizona Supreme Court ruled that the County Attorney had acted unethically and had prosecuted the Supervisor for pollical gain and retaliation.

Then, most remarkably, the County Attorney filed criminal charges against a Judge who had ruled against him is his dispute with the Board of Supervisors. He also filed a federal racketeering lawsuit against the Maricopa Board of Supervisors, leading Superior Court judges , and a private law firm shared by the Board and Court, alleging the defendants have conspired illegally to block criminal investigations and prosecutions of themselves.

In the end, things ended well. All of this cases were dismissed as baseless, and the Arizona Bar ultimately disbarred the County Attorney and disbarred or suspended the licenses of other attorneys that had worked on these matters. The Bar found that the County Attorney had brought unfounded and malicious criminal and civil charges against political opponents.

The politicization of the Department of Justice by Trump violates all norms, is dangerous and wrong. A remarkable number of career Justice Department prosecutors have shown great integrity and courage in refusing to take unethical action at the request of the political leadership in the Department. Let’s hope this continues. The Maricopa County experience, however, shows the danger of politicization of prosecution decisions. Just as in that case, we should not be afraid to insist that Justice Department officials be held accountable by their Bar Associations if they cross ethical lines.