The Situation: No Way Out

The Situation on Wednesday meditated on the Senate’s willingness to confirm a man as Federal Bureau of Investigation (FBI) director who is plainly lying to the body on important matters—and who is accused of perjury by the Senate Judiciary Committee’s ranking member.

Today, let’s consider the necessity and impossibility of being a federal prosecutor under the current administration.

Necessity because the country needs its career officials to remain in place, to ensure the government acts in accordance with the law, and to resist the corruption of the justice system.

Impossibility because the room for ethical prosecutors in government is closing fast.

You have by now already read about the Thursday Afternoon Massacre, in which the U.S. attorney for the Southern District of New York, key career officials at Main Justice and some assistant United States attorneys in New York all resigned rather than carry out the order by Acting Deputy Attorney General Emil Bove to drop charges against New York Mayor Eric Adams.

The prosecutors who resigned are getting plaudits for their bravery—and rightly so. But here I want to focus not on valorizing them, but on another aspect of their resignations. Specifically, I want to flesh out how President Trump’s norm-busting approach to the Justice Department has made being a federal prosecutor ethically impossible, at least in cases the president cares about. That is, I want to talk about how the breakdown of those “norms” we’ve all heard so much about these past few years led directly to these resignations. 

Since President Trump’s first term in office, there’s been a lot of talk about norms with respect to the Justice Department and the presidency. On one side of the argument have been people like me, who have argued that presidential interference with the independence of the Justice Department on investigative matters is toxic to justice and risks turning the department into an instrument of political repression. On the other side of the debate have been those who argue that the president is the head of the executive branch, that the Justice Department is part of the executive branch, and that the notion of an independent Justice Department is a myth designed to support the insubordination of the deep state. 

The frustration with these norms is not just a creature of the Trumpist right. How many times did we hear people on the Left and even the Center vent spleen at Merrick Garland for not moving fast enough or for not delivering the goods? How many times did we see his success or failure as an attorney general measured in purely political terms?

What gets lost in the cruder forms of this debate is how these norms are actually the only thing that make it possible to be a federal prosecutor ethically on matters of political sensitivity. The current episode offers an excellent illustration of that point.

The one thing that all sides purport to agree upon is that prosecutors are not supposed to go after people for political reasons. Whether it’s Trump and Republicans complaining of supposed Justice Department “weaponization” during the Biden administration or Democrats and Justice Department institutionalists fearful of Trump’s own promises to have the department investigate his opponents, the idea that the Justice Department is supposed to be politically neutral in its prosecutorial function has widespread theoretical acceptance (except when Trump openly flouts this acceptance, of course).

And there’s an intuitive logic to this acceptance. A federal prosecutor who only goes after Republicans and looks the other way when Democrats commit similar crimes is a menace to the idea that we don’t prosecute people for their politics. A prosecutor who dangles the possibility of prosecution over a politician’s head to force him to collaborate on unrelated policy matters is a dangerous monster, not someone pursuing justice. Such behavior is highly unethical for prosecutors, as even a brief glance at the Justice Manual or the ethics rules for prosecutors will show. 

Yet this sort of stuff is morning business for politicians. Opposing Republicans and all their work is what Democratic politicians do, after all, and vice versa. And trading favors with politicians in a quid pro quo fashion is what all political movements do. We call it horsetrading, and it’s not even a term of opprobrium.

The only way we have found to prevent prosecutors from using the state’s power to punish crimes in a fashion that involves normal political horse-trading and warfare is to severely limit their contact with politicians, to build a kind of wall between prosecutors and politicians.

But here the structure of the executive branch becomes a bit of a problem. Because, in fact, the Justice Department is part of the executive branch, and the executive power is vested in a president of the United States, who appoints and can remove the attorney general, who runs the Justice Department. So in a formal sense, the line prosecutor who has to be kept independent of politics does, in fact, work for a politician.

This is where the norms come in—or at least, where they’re supposed to and where they used to come in.

As a matter of norm, the executive branch has restricted contacts between the White House and the Justice Department on investigative matters. And it has erected a whole series of rules and systems designed to prevent political interference in prosecutorial decision-making.

But notice how quickly, when these rules break down, it becomes unethical to continue serving as a federal prosecutor. Let’s review the bidding in a mere three weeks of The Situation.

First, the new leadership of the Justice Department fired a group of people who had previously worked at the special counsel’s office. The grounds were not that they had engaged in any kind of misconduct or were bad lawyers. It was that they had worked for Special Counsel Jack Smith in prosecuting Trump—in other words, that they are politically unreliable.

Then the department fired a larger group of prosecutors who had worked on Jan. 6 prosecutions. Again, there was no specific allegation against any of them other than political unreliability. The same thing happened with a bunch of FBI agents.

Other senior career officials were removed from their positions and reassigned to garbage jobs. In other words, the administration’s first step was to make clear that the norm against political interference is gone. The president now reserves the right personally to direct the prosecutorial judgments of the department, and for overtly political reasons that are unacceptable for prosecutors to consider. 

Having moved to establish this principle, it took almost no additional time to put prosecutors in an ethically untenable position.

The demand was not to go after one of Trump’s political opponents. It was, rather, to protect a potential ally. But the demand operated in exactly the same fashion. Acting Deputy Attorney General Emil Bove ordered Danielle Sassoon, the U.S. attorney in the Southern District of New York, to drop the case against Adams without contesting its merits. He did so on overtly political grounds: that Adams would be better able to assist the administration on immigration matters if he weren’t facing federal charges. What’s more, he proposed to drop the case “without prejudice,” meaning that prosecutors would be able to file it again if, say, Adams were insufficiently cooperative.

Sassoon, quite rightly, saw this as ethically untenable. “Because the law does not support a dismissal, and because I am confident that Adams has committed the crimes with which he is charged, I cannot agree to seek a dismissal driven by improper considerations,” she wrote in a letter to the attorney general offering her resignation. “I understand my duty as a prosecutor to mean enforcing the law impartially, and that includes prosecuting a validly returned indictment regardless whether its dismissal would be politically advantageous, to the defendant or to those who appointed me.”

One of the trial team, who also resigned, put it more bluntly. “No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives,” wrote Hagan Scotten. “[A]ny assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way.”

There is a deep problem here and it goes way beyond the Adams case: Having ripped apart the only system that allows prosecutors to function ethically, we no longer have a mechanism by which federal prosecutors can function ethically. We have a rule in which the president can reach down to the assistant U.S. attorney level and order political favors for his friends in exchange for other remunerations. And we have ethical expectations of prosecutors that they will not entertain such demands.

The result? We have resignations. And we’re going to have more. Because if the president or his minions care about the case you’re working on, there is no place in government for an ethical prosecutor any more. 

That is what we lost when Trump ripped apart the norms that made ethical service possible.

So should all federal prosecutors resign? Absolutely not. It is critical that good people stay in place as long as it is ethically possible for them as individuals. The president doesn’t care about most cases, after all. So a great deal of normal day-to-day work can proceed unaffected by the political corruption that Bove doesn’t even seek to hide. As long as a prosecutor can do good work, my plea is to stay in place. 

But at this point, all federal prosecutors need to be prepared to resign. They are all one phone call away from being put in the position of facing a demand to behave unethically, one phone call away from a demand that is fundamentally political in character, not about justice. And when that call comes, it is imperative that prosecutors do as these ones did—resign publicly, showing their work along the way.

The Situation continues tomorrow.