The Department of Justice is now awash in the corrupt abuse of federal prosecutorial power.
In just a matter of weeks, the newly installed Trump appointees have repeatedly undertaken conduct that violates the core principles of justice that have driven the department’s mission throughout our lifetimes. Their most ardent goal is to humiliate and exact retribution against the career professionals who worked the prosecutions of either Donald Trump or the January 6 insurrectionists. Separately, they have harnessed department power as a tool for hounding Democrats and advancing Trump’s political interests.
Simply put, they are ruining the place. And they are destroying the morale and sense of mission that have been the chief reward for the public servants who have proudly served there for decades.
The episode involving the dismissal of charges against New York Mayor Eric Adams for wholly improper reasons, which prompted a wave of resignations of some of the department’s best and most qualified prosecutors, was the canary in the coal mine. The DOJ is the mine itself, and much of it is now suffocating, even as the country’s attention is captivated by other domestic and international outrages.
As it turns out, the Adams case, which is still unresolved, was prelude to a series of less well-publicized abuses.
1. The EPA contract investigation
Even more grave than dismissing a case that is amply supported on the facts, as in Adams, is initiating one with no predication. Interim D.C. US Attorney Ed Martin, Jr. has persisted in a campaign to launch an apparently baseless criminal investigation into the Biden Administration’s award of a substantial contract with the EPA. The demands prompted the resignation (at the insistence of acting Deputy Attorney General Emil Bove) of a 24-year veteran and top supervisor in the Washington D.C. office, Denise Cheung. As Cheung wrote in her resignation letter, both she and a series of white-collar colleagues in the office concluded that there was not adequate predication under DOJ guidelines to open a criminal investigation.
“I took an oath of office to support and defend the Constitution, and I have executed this duty faithfully during my tenure, which has spanned through numerous Administrations,” Cheung wrote.
Martin’s response to Cheung’s forced departure, and the unanimous assessment of his senior prosecutorial staff that there was no predication to pursue a criminal investigation, were astonishing.
Martin personally submitted a search warrant application. The magistrate judge rejected the request, agreeing with Cheung and her colleagues that the application failed to establish a reasonable belief that a crime occurred. That happens basically… never. I can’t recall a single instance when it happened in a US Attorney’s office where I was serving.
Did I mention that Martin has exactly zero federal prosecutorial experience, the first appointee to that post in over 50 years without having been a prosecutor or judge? His background is as a Republican political operative in Missouri, and his main credential that brought him to Trump’s attention was his involvement on Trump’s behalf in the “Stop the Steal” efforts.
Even after the magistrate rebuffed Martin, he and Bove still forged ahead. Bove’s office approached at least one other US Attorney’s office to launch the grand jury investigation and seek a court-ordered bank freeze, but prosecutors in that office wouldn’t do it.
It now appears possible that Martin and Bove have found a path forward. Several groups that had been awarded money through the EPA contract said the bank has frozen their accounts and won't tell them why. If so, it's no vindication of the lawless campaign. Probable cause is not a casino game where you keep pulling the lever until you get the result you want. It's a factual legal predicate, and all indications are it is lacking here. In that instance, the ethical prosecutor stops.
In fact, it's ironic that a spokesperson for the department took a swipe at Cheung on her way out the door, saying that failing to follow orders “is not an act of heroism.” That's exactly what it is when the orders are to violate the Constitution. As a Supreme Court famously put it, the interest of the United States attorney in a criminal case “is not that it shall win a case, but that justice shall be done.” Cheung’s adherence to that maxim was in the best traditions of the Department of Justice. It was Bove’s and Martin's indifference to it that was dishonorable.
2. “Operation Whirlwind”
Martin has announced an initiative, which he has dubbed "Operation Whirlwind,” to investigate and prosecute threats to public officials. Except, it turns out to be an initiative to harass Democratic members of Congress for sharp political rhetoric that does not fall within the boundaries of normal criminal prosecution.
Martin's two targets to date have been Senator Chuck Schumer and Representative Robert Garcia. Garcia came into Martin's crosshairs for saying on CNN that Americans "want us to bring actual weapons to this bar fight. This is an actual fight for democracy.” Schumer, speaking at a pro-choice rally, called out Justices Gorsuch and Kavanaugh and said, "you have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions."
Schumer's remarks were over the top, and he apologized for them. But one thing they weren’t was an actual physical threat to the justices, and Garcia’s even less. Under federal criminal law, the government would need to prove beyond a reasonable doubt that Garcia and Schumer intended to communicate an actual physical threat that a reasonable person would perceive that way, as opposed to heated political rhetoric.
No professional US Attorney's office would greenlight such an investigation. It would be a rank violation of binding DOJ principles. For one, no reasonable jury would mistake Garcia and Schumer's political rhetoric as a genuine threat.
That's why Martin couldn't open an actual federal investigation. Instead, Martin bluffed: he sent a letter saying he personally had received an unspecified request for information and clarification, and insisting, with an essentially empty but unsubtle threat, on an explanation. “Your cooperation is more important than ever to complete this inquiry before any action is taken. I remind you: no one is above the law.” (Bold and underlining in original.)
That's not how investigation of federal crimes works. US Attorneys do not insist in public letters that the targets of investigation, much less members of a coordinate branch, explain themselves. In fact, there's a clear rule that they don't communicate with members of Congress at all except through the Office of Legislative Affairs. It was particularly unethical for Martin to imply that the DOJ would lower the boom if the members didn’t “cooperate.”
If Martin were serious about policing threatening language by members of Congress, here's some low hanging fruit:
- During her 2020 campaign (so still within the statute of limitation for threats), Rep. Marjorie Taylor Greene shared a meme depicting herself holding a rifle next to images of Democratic Reps Alexandria Ocasio-Cortez, Ilhan Omar, and Rashida Tlaib. The caption read, "Squad's worst nightmare."
- In November 2020, Representative Paul Gosar posted an animated video depicting him killing Rep. Alexandria Ocasio-Cortex with swords and attacking President Biden.
Don't expect Martin to be demanding an explanation from Greene or Gosar anytime soon. They both have his good housekeeping seal of approval as certified election deniers and rabid Trump supporters.
3. January 6 demotions
Martin also was instrumental in the latest outrage, which came a few days ago, when he demoted several of the office's most senior and respected prosecutors. These are the career attorneys who handled the most significant January 6 cases, including the prosecutors who handled the contempt of Congress cases against Steve Bannon and Peter Navarro, the leaders of the Proud Boys prosecution, and the leader of the Steward Rhodes prosecution.
These are the sorts of respected professionals that are the lifeline of a US Attorney’s office. They now have been relegated to the most junior duties—the duties of a newcomer—prosecuting local misdemeanor offenses. It is the equivalent of being ordered to scrub the bathrooms with a toothbrush.
As disgraceful as is each of these episodes, I end with the recent development I found most distressing, for what it said about the damage to the department’s most valuable asset—the integrity, pride, and motivation of its career staff—that Bondi & Co. have managed inflict on the Department of Justice in less than two months.
Last week, Joshua Stueve resigned his post as senior communications advisor at the DOJ. Stueve is the paradigm of the honorable public servant. He has spent the last 25 years in service to his country, 10 of them on active duty in the US Marines. For the last 15 years he's been a spokesman for agencies within the Department of Defense and Justice.
In his letter of resignation, Stueve notes "the extraordinary expertise, patriotism, selflessness and steadfast commitment to mission of public servants throughout the federal service.”
He emphasizes that his resignation has nothing to do with Trump's victory; on the contrary, he writes that it has been his honor to serve this department under multiple administrations led by both Republicans and Democrats. Until now. All previous administrations “treated career staff with respect and dignity. It is heartbreaking," he writes, " to see that basic decency come to an end.”
Stueve continues, “Simply put, I cannot continue to serve in such a hostile and toxic work environment, one where leadership at the highest levels makes clear we are not welcome or valued, much less trusted to do our jobs."
Simply put, but gut-wrenching. For anyone who has served in the Department of Justice, Stueve’s report shows that the department has been turned upside down, and its most valuable asset—the integrity and dedication of its career staff—is pouring out.
I’ve detailed in past dispatches the toxic arrivals of Trump's hand-picked senior officials for the Department of Justice, beginning with Attorney General Pam Bondi and her 14 day-one directives that were thick with distrust of department attorneys and accusations of weaponization.
Stueve’s resignation letter makes clear that Bondi’s initial fusillade of accusations and disrespect has only continued. Attorneys General of both parties have always held the Department’s 10,000+ attorneys in the highest regard and have made it a priority to defend them against unfair attacks. The new invaders, in stark contrast, are launching attacks from within, with ominous effects on department culture and morale. And we should never forget that the ultimate victims are the American people they signed on to serve.
The traditional independence of the federal prosecutorial function, combined with the Supreme Court’s infamous opinion on Presidential immunity, make citizen scrutiny a challenge. But we can credit and amplify the words and deeds of honorable Department professionals who have given up their jobs rather than violate their oaths—Danielle Sassoon, Hagan Scotten, Denise Cheung, Joshua Stueve. We can keep the heat and light on the serial abuses by Martin and push Senators to reject his nomination, which has yet to go through. And we can repeat, and repeat again, that the accusations of misconduct leveled by the Attorney General on down—the actual constitutional villains—are contemptible lies; and the truth will out.
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.
