There hasn’t been much scrutiny of Pam Bondi since she became the Attorney General a little less than three weeks ago. She sailed well above the low bar set by Trump’s initial scandal-ridden nominee, Matt Gaetz, but that shouldn’t be much of a distinction. And she seems less flamboyantly unqualified, dangerous, or downright kooky than several of the more controversial nominees that Trump managed to cram through a compliant Senate. Finally, Bondi kept her fingerprints off the Eric Adams scandal, letting acting deputy Attorney General Emil Bove do all the dirty work. That’s not an unusual maneuver for a sitting attorney general.
But it would be a mistake to conclude that she has been a benign presence in her short time on the job. On the contrary, she has issued a series of directives that drip disdain for and unwarranted criticism of department attorneys. They surely have contributed to the miserable morale and sense of being under assault that DOJ career attorneys have reported feeling under this administration.
Bondi issued no fewer than 14 directives on her first day on the job, February 5. The most well-reported one set up a task force to examine the “weaponization” of the DOJ. It bore the subject “Restoring the Integrity and Credibility of the Department of Justice.” The memo began by asserting the need to “restore integrity and credibility with the public.” It provided a single reason why dramatic steps were required: “because, as President Trump pointed out following his second inauguration, ‘[t]he prior administration and allies throughout the country engaged in an unprecedented Third World weaponization of prosecutorial power to upend the democratic process.’”
To anyone who appreciates the mission and sworn duty of Justice Department career attorneys, that is a grave charge. And Bondi continued with it, blithely asserting, “the American people have witnessed the previous administration engage in a systematic campaign against its perceived political opponents.”
Bondi’s memo goes on in the same vein to assert, again without support, “weaponization” by special counsel Jack Smith and his staff, whose search of Mar-A-Lago (which she calls a “raid”) she mistakenly characterizes as “unprecedented.” It then levels a broadside against the department’s cooperation with the lawsuits brought by the New York DA and Attorney General against Trump.
I’ve suggested in the past that generally, the best place to start with analyzing the administration’s derelictions and outrages is to find the lie. Here it is in plain sight – the very lie endlessly proffered by Trump himself, recycled with the sole support being Trump’s own words. In other words, it is precisely as valid and authoritative as Trump’s own naked allegations.
It is critical to insist, again, and again, that the Biden administration did not weaponize prosecutions notwithstanding the repeated false charges from Trump on down. Moreover, we must call out the ways that the Trump administration under Bondi has already begun to do so themselves. And with the confirmation of Kash Patel, Mr. Reprisal himself, at FBI, and Sunday’s announced appointment of podcaster Dan Bongino as Patel’s deputy, weaponization may become the Department’s new stock in trade.
Perhaps the chief value of the already infamous Eric Adams scandal, in which Acting Deputy Attorney General Emil Bove ordered prosecutor after prosecutor to dismiss the case despite its solid basis in the law and the facts, is to exemplify what the charge of “weaponization” or “politically motivated prosecution” that Bondi and her boss throw around so promiscuously really means.
It is a case in which political considerations overrode the facts and the law, which are the necessary and sufficient elements of a valid criminal case. This is how you know whether the prosecutorial power has been used for improper political purposes: if a case is righteous on the facts and the law, it is justified no matter the political prominence of the target; conversely, if it isn’t, a prosecution should never be green-lighted for political reasons. That’s the precise meaning of the watchword of doing justice without fear or favor.
To break it down into categories, a case involving a political official with solid support in the law and facts is righteous; a forced dismissal, as in the Adams case, notwithstanding absence of any issue with the law and facts is politicized; and investigation or prosecution in the absence of adequate legal and factual support is weaponized or politically motivated. That last category—trumped up prosecutions of innocent persons—is the most shameful and corrupt use of prosecutorial power that a Department attorney can be charged with.
That, incidentally, is precisely why Special Counsel Jack Smith ended his report to Merrick Garland by saying, “the Department's view that the Constitution prohibits Mr. Trump's indictment and prosecution while he is in office is categorical and does not turn on the gravity of the crimes charged, the strength of the Government's proof, or the merits of the prosecution—all of which the Office stands fully behind.” That assertion, if credited, stands as a full rebuttal of the bogus suggestion, which Trump will never drop, that the Department’s prosecutions of Trump were weaponized or politically motivated.
None of this is controversial. In fact, it’s precisely what Bondi testified to in her confirmation hearings. She promised the senators that her decisions wouldn’t be influenced by political considerations, and that the Department of Justice under her stewardship would operate strictly on the basis of the facts and the law.
It's a promise that already has been broken twice in high profile cases on her watch. In the Adams case, Bove’s gun-to-the-head insistence that Danielle Sassoon and a series of other prosecutors dismiss a righteous case was overtly political. The letters from Sassoon and Hagan Scotten, and the successive resignations of five senior attorneys at Main Justice, demonstrated beyond any doubt that the orders were based on improper political considerations and flew in the face of the righteousness—the plain legal and factual basis for the charges—of the case. Thus, as Sassoon put it, Bove’s direction “to dismiss an indictment returned by a duly constituted grand jury for reasons having nothing to do with the strength of the case” was “inconsistent with my ability and duty to prosecute federal crimes without fear or favor.”
None of the various prevarications or finger pointing from Bove has done anything to call this essential point into question.
But even in Bondi’s short time, this is not an isolated aberration. Last Tuesday, Denise Cheung, a 24-year veteran of the US attorney’s office in Washington and the head of the criminal division there, resigned rather than carry out an order from interim US attorney and election denier Ed Martin Jr to launch an investigation into a Biden-era government contract without the required evidentiary predicate. Cheung explained that Martin’s order was unethical and following it would be a violation of her oath and her duty to uphold the Constitution and the law.
Nothing about these episodes is remotely normal for the DOJ, including during periods of transition. The resignations of Cheung, Sassoon, Scotten, and 5 other seasoned career attorneys is the equivalent of a 25-alarm fire at DOJ. And the unlawful orders coming from Department leadership to undertake political prosecutions or dismissals is unheard of and a breathtaking, permanent badge of dishonor. Those are simply facts.
Perhaps somebody reading this is a journalist who covers the department and will be present for Bondi’s press availability. If so, I would urge them to ask the Attorney General to name a single case of a weaponized or political prosecution from the Biden administration. She has access to all the prosecution memos. Is there a single case brought during Garland’s tenure that lacked the necessary support in facts and law? (Legal reversals by courts of appeals are routine for the DOJ and don’t cut it for showing legal inadequacy.) And to really zero in, what is her basis—her actual basis as a lawyer and a prosecutor—for asserting that Jack Smith’s charges against Donald Trump were not based in fact and law?
Bondi’s other memos are similarly sprinkled with pot shots and low blows. In her memo laying out “General Policy Regarding Zealous Advocacy on Behalf of the United States,” Bondi instructs DOJ attorneys that they must vigorously defend presidential policies and actions. She drops a bomb when she lectures that if attorneys refuse to advance good faith arguments “it undermines the constitutional order and deprives the president of the benefit of his lawyers." This description of DOJ attorneys as "the president's lawyers” would come as grotesque news to career attorneys, who fundamentally believe they represent the law and the Constitution, not the president. That’s the job for a Roy Cohn, not the attorneys who have sworn allegiance to the Constitution and federal law, which, not to put too fine a point on it, Trump is unabashed about violating.
In the same day’s harvest there were several Bondi memos that seem principally designed to undo the work of Merrick Garland, repeatedly questioning his integrity in the process. Some are, to say the least, not well thought through. One memo rescinds Garland’s “environmental justice memorandum” which prioritized “enforcing environmental laws in cases affecting overburdened and undeserved communities, including low-income communities, communities of color and tribal and indigenous communities.” Bondi assesses that Garland’s approach, which she assails as an example of climate extremism, was a violation of the “even handed administration of justice.”
Here her attacks appear to be combined with a flagrant ignorance about how criminal prosecution does and should work. It is routine for the department to target high-crime areas and most likely and serious offenders. For example, I did so in a gun-violence-reduction initiative in Pittsburgh, which targeted repeat violent offenders, typically gang members. The presumed robust new environmental enforcement in clean white communities will do nothing to address environmental crime in the country.
Bondi takes the same tack in her memo about reviving the federal death penalty, which she inaccurately says is under moratorium. She states, again without support, that the prior administration’s caution in pursuing the death penalty undermined the will of the people. That’s both tendentious and dubious: barely over half the country favors the death penalty. Worse, she proceeds to identify recent cases as deserving of the death penalty without having undertaken any analysis of them at all. This casual cheerleading in favor of executions based on nothing more than newspaper reporting cannot be squared with Department practice under administrations of both parties and the 8th Amendment dictates of the Supreme Court.
After her broadside against DOJ death penalty practice, Bondi adds a tub-thumping tagline worthy of a political rally: “This shameful era ends today.” It’s illustrative of another class of problems with her memos. They are gauche. Attorneys general don’t write this way. Memos to the field are not the place to deliver political screeds. I have probably read thousands of memos from different attorneys general, and I have never seen a single one with such a tin ear and inappropriate tone as characterize nearly every one of Bondi’s.
But the very worst aspect of the Bondi memos is the scathing disrespectful mistreatment of career DOJ attorneys. I was at the DOJ farewell ceremony for the last administration days before the Trump crowd arrived. The dominant overriding theme, from Merrick Garland on down, was absolute reverence for the career attorneys in the department. Attorneys general of both parties consistently have regarded them as the life blood of the place, and have made it their highest priority to support and defend them. Now enters Pat Bondi, an election denier who refused to concede Trump lost the 2020 election in her confirmation hearing, and showers them with contempt and snide and ignorant allegations on her first day on the job. (Allegations, I might add, that the entire Department knows are exactly backwards.)
Trump has managed to push through a series of nominations of seemingly anti-appointees—people perfectly suited to undermining their new agency’s mission—such as Robert F. Kennedy Jr., Tulsi Gabbard, Kash Patel.
To date, people have not generally put Bondi in that dubious category, but it’s time to reconsider. If an attorney general is supposed to represent the highest ideals of the DOJ to do justice without fear or favor, and a steadfast support for those employees who take that ideal to heart, then Bondi in her first two weeks has staked out a position as the anti-Attorney General. Her willingness to adopt Trump’s lies, insist others do the same, and savage the Department’s best with crass and condescending potshots, portend more terrible times ahead for federal prosecutors around the country.
Reprinted with permission from Talking Feds
Harry Litman is a former United States Attorney and the executive producer and host of the Talking Feds podcast. He has taught law at UCLA, Berkeley, and Georgetown and served as a deputy assistant attorney general in the Clinton Administration. Please consider subscribing to Talking Feds on Substack.
