Ed Martin Has Some Explaining to Do

To all appearances, Ed Martin is a fundamentally unserious person on the cusp of confirmation to a very serious job. Since Jan. 20, Martin has served as the interim U.S. attorney for the District of the District of Columbia. In February, President Trump nominated Martin to assume the position permanently. Martin’s confirmation could potentially come any day.

Any U.S. attorney wields an enormous amount of power over the lives of everyday people. As then-attorney general and future Supreme Court Justice Robert Jackson told a conference of U.S. attorneys in 1940, “The prosecutor has more control over life, liberty, and reputation than any other person in America.” That power enables a prosecutor to initiate investigations (and “if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations”), order arrests, open grand-jury proceedings, “cause a citizen to be indicted and held for trial,” try defendants, and recommend sentences upon conviction. 

The U.S. attorney in the District of Columbia is particularly powerful. The U.S. Attorney’s Office in D.C. is the largest in the country, with more assistant U.S. attorneys than any other U.S. Attorney’s Office, even though by population the district is smaller than cities like New York City, Chicago, and Los Angeles. Uniquely among U.S. Attorney’s Offices, the U.S. attorney in D.C. bears responsibility for all federal crimes committed in the District as well as “all serious local crime.” That means the office prosecutes cases ranging from simple assaults to complex white-collar cases. As the home to many government departments and agencies, and at least the occasional home to many elected officials nationwide, the D.C. U.S. Attorney’s Office plays a critical role in policing fraud and public corruption laws in the nation’s capital. The office, for example, has prosecuted D.C. government employees who accepted bribes, a federal lawmaker whose actions unlawfully interfered with a congressional vote, and political operatives who obstructed congressional investigations or willfully ignored congressional subpoenas. 

In his two months on the job in an acting capacity, Martin has not shown himself ready to take on a position that demands a capable and serious attorney. More than that, Martin has aggressively suggested he would—inconsistently with the Justice Manual that establishes prosecutorial principles for the Justice Department—prosecute conduct he views as “unethical” even if not unlawful. He has picked public fights with figures he seems to view as antithetical to Trump, with little regard for evidence or any plausible theory of criminal liability. He has trumpeted his support for the police by proposing reforms that may violate the Constitution and by celebrating police officers pardoned after a jury convicted them of murder and obstruction. A cynic might argue that Martin’s principal job qualification is having won Trump’s confidence, perhaps in no small part through his creation of a Trump-themed coloring book. (In fairness, Martin is not alone among Trump nominees in using this route to come to the president’s attention.) And in letters to perceived friends (like Elon Musk) and foes (like Rep. Eugene Vindman, twin brother to Alexander Vindman, both of whom were involved in Trump’s first impeachment in his prior administration), Martin has strewn typos such as “Noone is above the law” or “Please respond by day, month, date, 2025.” These actions do not bespeak a prosecutor “who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility."

But it has only been two months, and Martin has not yet been confirmed. Jackson observed to the conference of U.S. attorneys that their “immense power to strike at citizens” meant that to obtain the position they were “required to win an expression of confidence in [their] character by both the legislative and executive branches” before they could “assum[e] the responsibilities of a federal prosecutor.” When the Senate Judiciary Committee convenes to consider Martin, it should press him to answer several questions about his conduct in the couple of months he has acted as the top federal prosecutor in D.C. and about his view of the prosecutor’s role. Like other candidates for U.S. attorney positions, Martin may not face a hearing, leaving “questions for the record” as the only way for the Senate to measure its confidence in Martin’s character and aptitude for the job.  

The questions and issues here do not purport to be comprehensive. Potentially troubling historical behavior—including his association with a Hitler aficionado who was among the rioters at the Capitol on Jan. 6, 2021—and his letter to the Georgetown University Law Center threatening to retaliate for First Amendment-protected conduct may also merit probing. The questions below instead focus on how Martin would direct and supervise attorneys in his office as they undertake the everyday work of criminal prosecutors.

Start with what Martin apparently believes warrants the attention of his office’s relatively scarce resources—that is, relative to the amount of criminal conduct the office must cover. (As Jackson noted, “If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate.”) In a Feb. 7 letter that Martin sent to Elon Musk and Steve Davis at the Department of Government Efficiency (DOGE) and then posted on Twitter, he signaled his intent to “chase ... to the end of the Earth” people who had “acted simply unethically.” That is not consistent with the principles of federal prosecution as set forth in the Justice Manual, which guides federal prosecutors’ admittedly wide discretion. As the Justice Manual makes clear (and Attorney General Pam Bondi recently reiterated), the touchstone for initiating an investigation (let alone pursuing someone to the end of the Earth) is “probable cause to believe that a person has committed a federal offense.” Martin’s subjective invocation of an “acting simply unethically” standard raises troubling questions about how he will carry out his work:

• What does it mean to act “simply unethically”?
• How does conduct meeting the definition of “simply unethical[ ]” indicate a plausible federal offense?
• Are you aware that U.S. attorneys are bound by the policies set forth in the Justice Manual?
• In what circumstance is it appropriate for you to investigate people who have “acted simply unethically”? Do you acknowledge that “acting simply unethically” is not the standard for commencing an investigation under the Justice Manual?
• When you say that you will investigate people who have “acted simply unethically” and that you will “chase them to the end of the Earth to hold them accountable,” how does that help you combat crime in Washington, D.C., the district over which you have jurisdiction?
• If your office commits time and energy to investigating people who have “acted simply unethically,” will you have sufficient resources to focus on matters in which there is probable cause to believe that a federal offense occurred? 
• After having fired or demoted a number of prosecutors in your office since taking office—such that your office is operating below capacity—why would you choose to investigate people who “acted simply unethically”?
  

Martin’s focus on “unethical” instead of unlawful conduct appears to have played a role in the resignation of Denise Cheung, a veteran prosecutor, who left the office in February. Martin directed her to send a letter compelling a bank to freeze assets; Cheung “did not believe there was sufficient evidence to send the letter” that Martin demanded. Martin should have to explain whether, if a career prosecutor versed in and operating under the federal principles of prosecutions in the Justice Manual informs him that there is not sufficient evidence to move forward in a matter, he is prepared to heed that prosecutor’s advice. 

Another set of questions concerns something called the Lewis list, which may sound arcane but is in fact quite consequential. The list relates to prosecutors’ constitutional obligation to disclose materially exculpatory evidence in criminal proceedings, including evidence that tends to undermine the credibility of a witness (such as a police officer) whom the government has called in support of its prosecution. The Supreme Court articulated these requirements in Brady v. Maryland and Giglio v. United States. As the U.S. Court of Appeals for the D.C. Circuit has explained, the Lewis list (named after a 1978 case) is a database, maintained by the D.C. U.S. Attorney’s Office, that records information that could impeach police officers, including that an officer is or has been under investigation. Martin has suggested that he might withhold some of this information and “rewrite” the rules of the Lewis list. This raises a number of questions:

• Do you understand that prosecutors have a constitutional obligation to disclose to the defense information in their possession that might call into question the credibility or bias of its witness (Giglio information)?
• Do you understand that this legal obligation applies when prosecutors call police officers to testify at trial?
• Do you understand that this legal obligation exists whether or not your office decides to continue maintaining the Lewis list?
• Do you understand that if a prosecutor fails to disclose this information, an appellate court may reverse the conviction—allowing a convicted criminal to go free?
• Do you understand that if a prosecutor fails to disclose this information, a court may find that the attorney responsible for failing to disclose it—whether you, or one of your employees—committed professional misconduct?
• Do you understand that a finding of professional misconduct could lead to sanctions, suspension, or disbarment?
• Do you understand that if a police officer is cross-examined about misconduct that the government has not disclosed, it would place the police officer in an untenable situation: The officer could lie (risking perjury if the lie is detected) or testify truthfully (potentially undermining the officer’s credibility and the prosecution’s case)?
• In what way does the Lewis list hamper prosecutions?
• Explain how eliminating the Lewis list would help your office try cases more effectively.
• Explain how you would ensure that your office complies with its constitutional obligations under Brady and Giglio.
• Explain how you would ensure that convictions will stand on appeal if you have eliminated the Lewis list.
• Explain how eliminating the Lewis list would make the District of Columbia safer.

Martin should also be asked about his response to President Trump’s pardon of two police officers, Terence Sutton and Andrew Zabavsky, who were convicted for murdering and covering up the death of an unarmed moped driver who did not heed commands to stop. A jury found that when the moped driver died in a crash after being pursued by one of the officers (who drove at unreasonable speeds, including while going the wrong way up a one-way street), the officers took steps to destroy evidence at the crash scene, misled their commanding officer, and drafted a false report of what occurred. When news broke that Trump planned to pardon the officers on Jan. 21, Martin posted that “we will stand with the Blue against the thugs and scum who terrorize D.C.”; that, whereas the Biden administration “chose politics over police,” he chose the police; and that it was time to “[f]ree these guys and let’s go get the bad guys.” The following day, Martin sent an office-wide email praising the pardons and claiming that they would make D.C. safer. Martin additionally claimed the officers were “wrongfully convicted of a bogus charge.” Several lines of questioning arise from this case and Martin’s handling of it.

Start with questions about the case itself and the message it sends to D.C. residents that Martin has prejudged all cases involving police officers notwithstanding what the facts—as determined by a jury trial—may establish:

• Did you review the evidence before declaring that the officers were convicted of a “bogus charge”? 
• If in your view the evidence was insufficient, how do you explain (a) the district court judge’s decision to allow the case to move to a jury and (b) the jury’s unanimous conviction?
• Did you speak with the family of the killed moped driver before celebrating the pardons?
• If a person in D.C. is mistreated by a police officer, or if a police officer commits a crime against a person in the District, how can that person trust your office to take seriously any complaints against the officer?

The U.S. Attorney’s Office that Martin would oversee consists of more than 300 prosecutors. For the office to function effectively, the U.S. attorney has to rely on the ethical practice and sound judgment of line prosecutors. But the message Martin sent in this case suggests he has little confidence in those prosecutors—despite a seeming lack of effort to educate himself about the steps the investigating agents and prosecutors took. This raises additional questions:

• When you sent an office-wide email praising the pardons, what message do you think that sent to the prosecutors working there?
• Before celebrating these pardons, did you speak with the FBI agents who investigated the case or the prosecutors who handled the pretrial litigation, trial, and sentencing?
• Under what circumstances would you trust the professional judgment of a prosecutor who sought to charge a police officer with a crime?
• Under what circumstances would you trust the professional judgment of a prosecutor who reported that a police officer took some action that made them unfit for duty or unfit to sponsor as a witness?

In an open letter sent on March 7, Martin indicated that the officers in question have been reinstated by the Metropolitan Police Department. This, too, prompts questions:

• How do you expect prosecutors in your office to work with the pardoned officers, or to trust their testimony, given the findings that they falsified evidence and lied to cover up a crime that one of them committed?
• Police officers are often required to testify as witnesses at trial. Would you support the pardoned officers testifying as witnesses at trial?
• Would you agree that, if either officer were to testify at trial, your office would be required to produce a record of their convictions—even though they were pardoned—as impeachment information? In other words, do you agree that a jury hearing them testify may consider the prior finding of guilt in assessing their credibility?
• You have praised the pardons and reinstatement of two officers who were convicted of obstruction of justice for falsifying evidence and concealing a crime; one of those officers was convicted of murder. Under what circumstances would you support the prosecution of a police officer for crimes committed against a person in Washington, D.C.? Under what circumstance would you support relieving an officer for crimes or misconduct?

Of course, many of the same things could—and should—be asked about Martin’s response to pardoned individuals who assaulted officers from the Metropolitan Police Department and United States Capitol Police at the Capitol on Jan. 6, 2021. Despite Martin’s warning to “thugs” that “we comin,” Martin has never acknowledged the many, many rioters who thuggishly and violently assaulted officers that day. That includes his own clients, like William Chrestman, who brandished an axe handle at officers after crashing through a police barricade. It is worth lingering on that point: When he represented Chrestman, who pleaded guilty to threatening a federal officer with an axe handle, did Martin have any reason to believe that Chrestman was not in fact guilty? If so, did Martin convey those reservations to the court?

Martin’s broader involvement in the events of Jan. 6 deserves attention as well. Martin, who was at a Stop-the-Steal fundraiser on Jan. 5 and outside the Capitol on Jan. 6, represented several defendants prosecuted for their actions in and around the Capitol that day. Yet as the acting U.S. attorney, he moved quickly to dismiss charges even against a criminal defendant who, according to the docket, he still represented. Several senators have asked the D.C. Office of Disciplinary Counsel to investigate whether Martin’s conduct violated the rules of professional conduct. Among the questions about Jan. 6 that he should address are:

• Was it a conflict of interest for you to represent Joseph Padilla while in private practice and then personally submit a motion to dismiss the counts against him on Jan. 21 while serving as the acting U.S. attorney?
• Have you communicated with Jan. 6 defendants since becoming the interim U.S. attorney?
• Do you believe that Jan. 6 defendants should receive compensation from the federal government?
• The Washington Post reported that your office recently declined to prosecute a case against Jan. 6 defendant and noted Proud Boys leader Enrique Tarrio, following an incident at the U.S. Capitol on Feb. 21 in which the United States Capitol Police arrested Tarrio for simple assault. Given your representation of William Chrestman, also known to be affiliated with the Proud Boys, did you recuse from those discussions?

Martin’s pugnacious public statements raise another set of ethical questions. Under D.C. Rules of Professional Conduct, prosecutors in criminal cases should limit their public utterances to “statements which are necessary to inform the public of the nature and extent of the prosecutor’s action and which serve a legitimate law enforcement purpose,” taking special care not to “make extrajudicial comments which serve to heighten condemnation of the accused.” The Justice Manual further counsels all Justice Department personnel to balance four interests in the release of information to the public: “(1) an individual’s right to a fair trial or adjudicative proceeding; (2) an individual’s interest in privacy; (3) the government’s ability to administer justice and promote public safety; and (4) the right of the public to have access to information about the Department of Justice.” (The Justice Manual recognizes that U.S. attorneys should “exercise discretion and sound judgment” consistent with department policy for matters “affecting their own district.”) Martin’s public statements thus far may not formally have occurred in the context of ongoing criminal cases. But he has nonetheless gratuitously issued veiled threats of prosecution against several figures, including former Special Counsel Jack Smith (disclosure: I worked for Smith), Rep. Robert Garcia (D-Calif.), and others. That aggressive and often targeted rhetoric neither inspires confidence nor reflects the best traditions of the department that he would represent.

Addressing a group of U.S. attorneys 85 years ago, Robert Jackson recognized that the prosecutor “at his best” can be “one of the most beneficent forces in our society,” but that “when he acts from malice or other base motives, he is one of the worst.” Where on this spectrum would Martin fall? His responses to the questions above would go a long way in answering that larger question.