In March of this year, you inherited — by choice — the country’s law shop, a place soiled by your predecessor. In the soft-shoe shuffle with the denizens of a sclerotic upper house, you promised to restore public faith in the integrity of the Justice Department. Everyone agreed: you were a transcendently swell guy, the ideal person for the job.
Hundreds of former officials and US attorneys publicly said so. Even Senator Cornyn was on board: “[H]e seems like a fundamentally decent human being,” and “he’s an honorable person.” Whether Cornyn is a reliable judge of decency and honor is a different question. Regardless, your canonization was complete.
Several months in, how goes the restoration? Certainly, prosecutions related to the January 6 assault on the Capitol are moving ahead. Curious, though, is the absence of action against the DOJ prosecutors who, under Barr, submitted doctored evidence in the Flynn case. Why are they still on the payroll?
Yes, you told the Senate about your other objective, to boost the morale of career DOJ professionals. Assuming, even, that DOJ morale needs a boost, how does your tolerance for the breach of every lawyer’s most basic ethical duty boost an entire department’s morale? Isn’t there a risk that your tolerance will be seen as license?
Government attorneys already get every benefit of every doubt in every courtroom in the country. How much more insulation against accountability do they need? Surely, you do not dispute the fact that non-government attorneys who mislead a court face the very real risk of a threat to their law license and livelihood.
We do not know why you have decided this. You’re often referred to as an “institutionalist”, someone whose supreme loyalty is to the Justice Department rather than to a president or a particular political point of view. It is meant to be a compliment. It’s also a way of saying that, unlike Barr, you are not a political hack who sees himself as a president’s personal attorney.
But if loyalty to DOJ means a blind eye to prosecutorial misconduct in a specific case, what is the value — to the public and to the law’s health — of being an institutionalist? How does the Justice Department, as an institution (versus its individual miscreants), benefit from a restored public faith when it, through you, effectively legitimizes the wrongdoing of its own?
You likely argue that, after the Barr interregnum, avoidance of a politicized DOJ is paramount, and that any case related to the previous regime is by definition political and, therefore, not appropriate for prosecution. This is a remarkable — and dangerous — proposition. Further, in the Flynn case, it was career prosecutors, not politicians, who submitted invented evidence.
They did so in furtherance of the dishonest Barr/Trump narrative that was intended to help the former president obstruct justice. That they may have been following Barr’s orders — a question resolved at Nuremberg, no? — did not translate into approval to mislead the court. To make them publicly accountable for doing so is a vital course correction, not politics.
Has your fixation with appearing apolitical morphed into self-absorption? If you deem political any case connected to a political figure, you immunize politicians against criminal liability not because the law says so, but because you’re devoted more to public relations than application of the laws. How does that restore the faith of a public convinced that we have two-track justice?
Robust punishment to deter wrongdoing has been part of the prosecutorial canon forever. Why does that not apply to prosecutors in the Justice Department? If it doesn’t, and if you never explain why it shouldn’t, how is the culture you now lead at DOJ different from the culture of omertà that prevails in police departments and criminal organizations?
