Law and Politics in the Quest for an Independent Department of Justice

In “Holding the Line,” Geoffrey Berman tells a depressing story about his conflicts with the Trump administration and its Department of Justice during two and a half years of service as the acting U.S. attorney for the Southern District of New York (SDNY). He found himself confronted with brazenly political demands from Main Justice to initiate, proceed with, or drop prosecutions. The politics were often straightforwardly partisan. At one point, it appears that the department was keeping score on the number of Democrats versus Republicans caught up in investigations, and pressed for Berman to even things out. Berman also suspected that then-President Trump was letting his wishes be known to Justice Department officials uninclined or unwilling to resist him. This was a very personal brand of political pressure: the use of the Justice Department to reward his friends and punish his enemies.

As a direct witness to the politics of law enforcement in the Trump administration, Berman adds more damning detail to the well-established record of Trump’s contempt for norms of appropriately independent law enforcement and its infection of the Justice Department. He sees former Attorney General William Barr as complicit, all too eager to please the Boss, and glad, too, to apply his view of a powerful “unitary executive.” It is not clear that catering to Trump’s wishes and whims weighed as heavily in Barr’s controversial choices as his personal politics and constitutional theories. Whatever the mix of Barr’s motivations, Berman has nothing positive to say about the former attorney general’s stewardship of the department in the Trump administration.

Berman has a theory of his own to offer, a particular conception of what is required for “independence” from presidents and attorneys general, and a program for implementing it. This is where the powerful story-telling tails off into unpersuasive proposals for fully purging federal law enforcement of political “interference.” He takes up a difficult issue, but then he oversimplifies it, and the more interesting questions of the relationship of politics to a conception of independent law enforcement are left unexplored.

Without a doubt, Berman was a tough-minded, principled U.S. attorney. This chronicle of his leadership at the SDNY shows him rightly and commendably fighting in defense of traditional norms of impartiality and professionalism. He won some, lost some. Though heavily pressured by Attorney General Barr to revisit the SDNY’s successful conviction on campaign finance charges of Trump’s former personal lawyer Michael Cohen, Berman refused to do so. He fought off a department move, apparently prompted by serial Trump tweets, to prosecute former Secretary of State John Kerry under the Logan Act.

Less successful were his valiant efforts to prevent the department from proceeding with scandalously meritless Foreign Agents Registration Act charges against well-known lawyer and former Obama White House Counsel Greg Craig. When the SDNY declined to pursue the case, concluding that there was no basis for it, the department recruited the U.S. Attorney’s Office for the District of Columbia to bring charges. This was the instance when Main Justice informed Berman that the time had to come to “even things out” on the Democratic-Republican prosecution scoreboard. When the case was brought, Trump tweeted out his delight. A jury acquitted Craig after less than five hours of deliberation. 

Berman did what he could, and we should be very glad. And the book delves into other cases brought and won by the SDNY during his tenure. He gives engaging accounts of the prosecutions of quite the roster of bad actors—domestic terrorists, corrupt lawyers and government agencies, sex traffickers, companies in the business of knowingly and recklessly distributing dangerously addictive drugs—as well as the retrieval and return of artwork the Nazis stole from their Jewish owners. He gives readers a feeling for the enormously hard work that goes into these successful prosecutions, and he is liberal in the dispersal of credit to named individuals on the SDNY team who put in long hours of superior lawyering. 

Threading through the case histories is a broader theme: his advocacy of the SDNY, described in the book’s subtitle as “the nation’s preeminent US Attorney’s Office,” as a model of independence for all U.S. Attorney’s Offices. He repeatedly stresses this independence, a “stubborn independence”—a fidelity to a strict code of decision-making walled off from direction, influence, or pressure of any kind. “Instead of asking, what makes SDNY unique, the question should be, how can we make other districts more like it?” His call is for all U.S. attorneys to stand firmly for decisions on the merits and just the merits: calling them as they see them on the law and the facts. Improper “interference”—a term appearing throughout the book—is not only the raw partisan misuse of the law enforcement process. It encompasses any control that the department would want to exercise over decisions to pursue or decline prosecutions. 

This is his key claim:

The power concentrated at Main Justice and exerted by the attorney general and his inner circle does not derive from anything in the constitution. It has accumulated over the course of many decades, like a slow-motion power grab, through the rules written at the Department of Justice and through what has come to be perceived as precedent.

This proposition seems problematically misstated. The power concentrated at Main Justice derives ultimately from an entirely reasonable, perhaps unavoidable, reading of the constitutional setup. Under Article II, the president is charged with taking care that the laws be faithfully executed. The president nominates and the Senate confirms the attorney general as a member of the Cabinet responsible for representing the United States in legal matters and advising the president and executive branch departments. Federal law further provides that, with narrow exceptions not relevant here, “[a]ll functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.” It follows that while the U.S. attorneys are also presidentially nominated and confirmed officers, charged with federal law enforcement in the jurisdictions to which they are appointed, they are subject to the attorney general’s supervision and direction. It is hard to see how U.S. attorneys could be endowed, state by state, with independence as Berman conceives it, if attorneys general are still to meet their statutory responsibilities and achieve uniformity in the representation of the United States in accordance with the president’s policies and priorities.

To the degree U.S. attorneys enjoy independence in prosecutorial matters, a norm does the work, but it can be complicated in practice. When the George W. Bush administration fired seven U.S. attorneys in the middle of their terms for failing to display more commitment to the investigation of voter fraud, Congress howled and the department’s inspector general was critical, but it was not seriously contended that the attorney general could not set law enforcement priorities for U.S. attorneys or fire them for disregarding or inadequately attending to these priorities. The inspector general’s criticism was directed primarily at the process by which these decisions were reached in the midterm firings and the department’s fallacious explanations for them. 

How, then, Main Justice’s supervisory power is exercised is a legitimate concern, and there are regulations and, as in the Bush case, norms meant to guide the exercise of discretion. Especially in the decades since the Watergate scandal, which left in its wake incarcerated administration lawyers, including an attorney general, the norm of a department enforcing the law without regard to political affiliations or pressures has taken hold. It is a testament to the status of that norm that Democrats and Republicans routinely accuse each other’s administrations of violating it. 

Berman does not simply uphold that norm but goes much further. He argues for “devolv[ing] more power to the nation’s 93 US attorney’s offices” to operate independently of Main Justice—in all respects and not only to keep clear of partisan political influence. Berman makes specific recommendations to this effect, should there be any doubt left about his expansive notion of independence:

• Attorneys representing clients in cases before U.S. attorneys should not be able to appeal to Main Justice a decision to prosecute: “A decision to indict by a US attorney should be the final word.” The only appeals he would permit to continue are those alleging that “the prosecution would violate clearly established DOJ policy[.]”
• A U.S. attorney’s decision not to indict should be final—expressed as such in “an ironclad policy.”
• U.S. Attorney’s Offices should have limited responsibilities to report to Main Justice and, in particular, should no longer be required to file “urgent reports” when an investigation is opened that might attract major public attention. Berman contends that these reports are “an invitation for political involvement at the highest levels of DOJ.”
• “DOJ should eliminate or revise many of the permissions that US Attorneys must seek from Main Justice,” a recommendation in keeping with his concern that any such approval process would “provide a mechanism for political appointees to meddle in the work of justice.”
• Congress should pass a law empowering prosecutors to pursue obstruction of justice charges against officials—all the way “up to the president—who try to corruptly interfere in charging decisions for political purposes.”

Even scholars who strongly support the project of enhancing prosecutorial independence have worried that Berman takes this position to an “extreme” that suffers from “serious defects.” A key concern is its slighting of the problem that arises if the U.S. attorney is the one with political aims and the attorney general is unable to check them for lack of sufficient supervisory control. 

It is not my purpose here to argue for a particular solution, though in our book “After Trump,” Jack Goldsmith and I have made a number of suggestions for reforms to guard against inappropriate political influence over law enforcement. But an issue of particular interest raised by Berman’s book—and by the entire “independence” project—is the ways that, in an ironic turn of events, politics may drive the very steps taken to guard against the appearance of politics in law enforcement. These are among the nagging real-world difficulties missing from Berman’s treatment of the subject of “politics” and “independence.” 

When does the desire to protect independence itself become political? Politics of this kind enters the picture when government officials who anticipate these charges begin to build defenses against them, seeking what is, in effect, political inoculation against the political attacks to come. To do so, they think and act politically, even if in the best of faith, with a genuine concern for the perception of the integrity of the rule of law. 

An example is the failed prosecution of John Edwards, the former Democratic senator and vice presidential nominee. His extramarital affair and the child it produced led him to seek out money from friends and supporters to provide for his lover and their child while keeping the affair a secret. The North Carolina U.S. attorney, a Republican, investigated this unhappy situation as a criminal campaign finance case, the theory being that the gifts to the senator were illegal campaign contributions. The state’s senators urged the Obama administration to take a hands-off approach to the case. An incoming Democratic administration involving itself in the case —“interfering,” in Berman’s term——would be a bad look. The administration decided to keep the Republican U.S. attorney in place to investigate the Democrat until the investigation and any prosecution were concluded. The incumbent U.S. attorney should decide whatever he decided. Main Justice would let it go because of the political cost of raising any questions—of “interfering.” 

But the case against Edwards was weak, and when charges were filed, they met with the fate they deserved. The jury acquitted on one charge and deadlocked on the others, and, after a presumably hard look at the likelihood of more success the second time around, the government decided not to retry the case. The Republican U.S. attorney was not present for this decision or the failed trial that required it. He had finished the investigation and joined the department in announcing the indictment of Edwards, declaring grandly that “Democracy demands that our election system be protected, and without vigorously enforced campaign finance laws, the people of this country lose their voice.” He then resigned and, only weeks later, announced he would run for Congress. He sharpened to the finest possible point the appearance of politics that the administration had supposedly avoided by keeping him on. 

Now in some cases, this attention to the appearance of political “interference” may be defensible: Perhaps the decision to indict in the particular case is hard, a close call, but the significance for law enforcement policy is high. These considerations carry little weight when the legal theory is dubious and perhaps, as in Edwards’s case, laughable; the issues hardly momentous (even if salacious public interest is keen); and one of two possible outcomes are in the offing, both undesirable—a jury convicts, maybe just abhorring the defendant’s personal conduct, or it does its duty and rejects the government’s case. The first of these outcomes is far worse than the second. But the second is still a stain on the department’s enforcement record. Losing a case is not the problem: The government may lose meritorious cases and should still have brought them. A prosecution that failed because it should never have been brought is more than any failed prosecution: It is departmental failure, especially where the kinds of political calculations, however well intended, shaped the ill-fated prosecutorial choice.

Berman’s account of his struggles with Main Justice, and in particular his account of the Halkbank case, shows still another way that the strongest view of prosecutorial independence can become almost inevitably entangled with political pressures—with politics defined to include a range of presidential objectives other than having federal cases brought on their pure merits. The SDNY had the goods on Halkbank, a Turkish bank with close ties to the Erdogan government, which was involved in a multibillion-dollar scheme to evade U.S. sanctions on Iran. The Erdogan regime strongly and publicly objected to the investigation. It channeled its complaint directly to Main Justice and Trump. Trump was very receptive to this pressure, and Berman notes Trump’s long-standing business interests in Turkey. Berman also acknowledges that discussions about the case within the Trump administration included Main Justice consultations with foreign and national security officials about the implications of a prosecution.

The bank’s lawyers pressed for a settlement that Berman describes as “toothless”—a deferred prosecution agreement and immunity for all government and bank officials. Attorney General Barr pushed the SDNY hard to back off and allow Main Justice to direct a resolution acceptable to Erdogan in deference to the national and foreign policy stakes. Berman resisted, seeking to “pursue the Halkbank case without fear or favor, and, as always, to protect the integrity and independence of our office.”

The stand-off ended suddenly with a call from Barr to Berman instructing him to bring the case to the grand jury without further delay. Halkbank was subsequently charged. “Apparently, Trump had fallen out with Erdogan.” Turkey’s military assault on U.S.-allied Kurdish forces in northeastern Syria had led to criticism of Trump for withdrawing troops from the area only days before the attack, which left scores dead and hundreds of thousands displaced. The U.S. president was embarrassed. Erdogan had to be rebuked, and Halkbank was one way to make a display of presidential displeasure. In this instance, while Berman felt that the department “is not supposed to operate according to the president’s impulses, personal relationships, and business interests,” one or more of these factors, which had first blocked the case, then produced the opposite result, clearing the way for the attack to proceed. “Interference” prevented prosecution; the later directive from on high, from Main Justice, brought it back to life. 

Not a pretty story, to be sure, but instructive. Put to one side the particular case, especially given the likely role of Donald Trump’s impulsive and uninformed leadership style. In principle, an administration might well object to a prosecution because it complicates or undermines vital U.S. national security and foreign policy interests. A U.S. Attorney’s Office insisting on prosecution “to protect [its] integrity and independence” may be seriously misapplying the no-interference rule when the attorney general is carrying out a president’s resolution of a conflict between the constitutional responsibilities to take care to execute the laws and to conduct U.S. foreign policy. Then assume again that, for reasons unrelated to the merits of the legal case, the executive reverses position and demands immediate prosecution, looking to express unhappiness with another government. The U.S. attorney is relieved, content to proceed, though aware that his motive—principled, independent law enforcement—and the president’s—striking out in frustration at that government and its leader—are very different. 

In circumstances like these, there is little clean or simple about the operation of politics—whether low politics or geopolitics—and the principle of prosecutorial independence. Geoffrey Berman usefully offers up questions like these for reflection and discussion, but he does not have the answer.