More than 10,000 lawyers, many of them from the U.S. Department of Justice, have left the federal government during the second Trump administration. “Their departures show how rapidly the president has eroded the image of the federal government as the gold standard for lawyers seeking public service roles,” writes The New York Times.
Politics and legal affairs editor Naomi Schalit spoke with John E. Jones III about the mass departure of federal government lawyers, as well as other recent issues related to the Department of Justice. Jones, now the president of Dickinson College, is a retired federal judge appointed by President George W. Bush and confirmed unanimously by the U.S. Senate in 2002.
Schalit: What are the repercussions of this exodus of lawyers?
Jones: One thing that I could rely on as a federal judge was the professionalism of the Department of Justice, and hand in hand with that was its collective credibility.
When you have an exodus of those professionals, and when you have, unfortunately, Department of Justice attorneys going into federal courts across the country and outright misrepresenting – the stronger word is lying – to federal judges, it really creates a massive reputational problem for the department.
So “massive reputational problem for the department” means what happens between lawyers and judges. What are the on-the-ground implications of that for people who are caught up in the justice system?
It’s well to remember that the attorney general’s client – the Department of Justice’s client – is the United States of America. It is not the president of the United States, even though one would think that based on the way this president operates his administration. The mission of the Department of Justice is within its name: It’s to do justice, to uphold the rule of law, to operate without fear or favor, and to make sure its prosecutions are righteous and well founded.
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There’s no question that through history we’ve had attorneys general who’ve gone off the grid, so to speak. But I don’t think there’s ever been historically as seamless an interface – in a bad way – between the president and the Department of Justice as what we see today. The president in his second term has had the attorneys general essentially do his bidding and prosecute his enemies.
Even going back to the Nixon years, Attorney General John Mitchell committed a number of acts that ended up with him spending almost 20 months in prison. But it didn’t involve selective prosecutions – it involved crimes that were largely outside his role as attorney general.
When Robert F. Kennedy was his brother John F. Kennedy’s attorney general, despite their brotherly attachment you didn’t see anything like this. In fact, history informs us that they were always concerned about conflicts and promoted the independent operation of their U.S. attorneys.
There have also been grand juries rejecting attempts by the Justice Department’s attorneys to get indictments.
That proves a couple things: that grand jurors are doing their job and being very, very clinical about issuing true bills of indictment. And also that the pervasive activities of the administration are becoming known to average citizens, and they are looking with a jaded eye toward the prosecutions that are being put in front of them. That’s happened not just in Washington, D.C., but in Chicago and other places across the country, and I would expect that to continue.
President Donald Trump has announced the nomination of Todd Blanche to be the U.S. attorney general. Blanche, a former personal lawyer for Trump, had served as acting attorney general since Trump forced out Pam Bondi. If you were advising senators in confirmation hearings for Todd Blanche, what questions would you recommend they ask?
In terms of the prosecutions of the perceived enemies of President Trump, I would want to know just how much interface and discussions there have been between the White House and the Department of Justice, including obviously the president and Mr. Blanche. I’m not sure that you would get a straight answer, but I think it’s worth asking the question. I might want to know whether he has ever refused to investigate or prosecute someone the president ordered him to target.
I’m not put off by the fact that Todd Blanche was the president’s personal lawyer. That’s fine, he has a history as a prosecutor before that, and the personal relationship doesn’t disqualify him.
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I might also ask him hypotheticals where you test whether or not he could speak truth to power – specific hypotheticals about fairly evaluating a White House mandate ordering him to prosecute the president’s enemies. But if he can’t – as even attorneys general in the first administration Bill Barr and Jeff Sessions did – speak truth to power and stand up to the president and instead becomes a rubber stamp to exact revenge on behalf of the president, I think he’s fundamentally unfit for this really powerful, critical Cabinet post.
Let’s turn to another constitutional question. In reporters Maggie Haberman and Jonathan Swan’s new book, they detail that there was a move to suspend habeas rights, – which allow a person detained by the government to challenge that detention – for unauthorized immigrants, although one high-level administration lawyer advised strongly against it. As a former judge, what’s your reaction to any attempt to do that?
You know that the Great Writ, as it’s called, has only been suspended about four times in the history of the country. First by Abraham Lincoln during the Civil War, and it was found to be an unconstitutional action, although the Congress in 1863 stepped up to provide the president the power to suspend the writ during the war when “the public safety may require it.”
On the one hand, it proves that there is at least one attorney in the White House who is willing to speak truth to power. There’s simply no current basis in law or fact to suspend the writ – look at the Constitution, Article 1, Section 9, which says, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
I think the courts would stop the president if he tried to do it. The opinion that the president received from counsel was a mixture of both “You’re going to get stopped by the courts, you’re going to get engaged in litigation right away” and “This is going to look terrible if you do it.”
This would have been a quantum leap in the wrong direction had they actually endeavored to do it. Sadly, expediency regularly triumphs over the rule of law far too often in this presidency, and that puts the rights of all citizens at risk.
John E. Jones III does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
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