Conduct Unbecoming

This is a real post from the U.S. Department of Justice account on Twitter.

It’s an apparent response to the sandwich throwing incident, which, while technically an assault, is an insufficient provocation for the Justice Department to threaten to “come after” any protester who touches an agent.

One of the most important touchstones at DOJ is exercising judgment and acting with restraint—taking time to assess situations and drawing on the collective expertise of generations of skilled lawyers to find the right solution to difficult problems. Above all, the focus is on justice and fairness, and ensuring that people’s rights are protected. That Justice Department appears to be dead, or at least in a coma.

The Justice Department is the only cabinet-level agency whose name is a moral virtue. I say that a lot because I think about it a lot. Getting it right isn’t just a job, it’s essential to protecting our democracy and fulfilling the oath we all take to uphold the law. It’s a serious matter, that oath, or at least it was when we took it.

As attorney general, Pam Bondi knows that the use of force by law enforcement is governed by the Fourth Amendment’s prohibition against unreasonable seizures, which includes a ban on excessive force. Federal agents can use force to detain someone, but local police officers are limited to force that is “objectively reasonable” under the circumstances and proportionate to the situation. This requires weighing the severity of the crime, the threat the individual poses, and whether they are actively resisting. So, no, DOJ has no business threatening people for exercising their First Amendment rights. The use of excessive force is a violation of the law and can have serious consequences.

The Fourth Amendment also applies to ICE agents engaged in immigration enforcement, and DHS regulations forbid agents from making threats or physically abusing people to force them to make a statement or waive their legal rights.

This DOJ doesn’t seem to know, or perhaps care, where the lines are. In a normal Justice Department, for instance, Ed Martin would be facing discipline—if not firing—for his most recent stunts. Martin thinks being a prosecutor means being a provocateur. He doesn’t understand that being given a job and a fancy title at DOJ doesn’t make you a prosecutor. It’s a job you have to earn and deserve. He hasn’t.

Martin was Trump’s first pick to be the U.S. Attorney in the District of Columbia, the job that ultimately went to Judge Jeanine Pirro, the former Fox News host. I wrote extensively to explain why Martin was unqualified for that job and offered examples showing he was unsuited for it. Ultimately, enough Republican Senators reached the same conclusion and his nomination was withdrawn. Trump instead had him installed in a position in Main Justice that didn’t require Senate confirmation. Martin, among other jobs, “runs”—though I still don’t understand how someone who has never indicted a case can supervise complex investigations and be trusted to make wise prosecutorial decisions—the unit that is considering revenge prosecutions against some of Donald Trump’s “enemies,” including matters involving New York Attorney General Tish James and California Senator Adam Schiff, which have already been announced. (You might be thinking, at this point, Joyce has told us DOJ doesn’t announce when it’s investigating people. That unfairly tarnishes their names and can interfere with acquiring evidence in a case. Apparently, this administration does. Martin has already said that if cases can’t be prosecuted, he will “name and shame” people.)

This week, Martin visited a home James owns that is part of one of his so-called investigations. He stopped to pose for photos curbside, looking more like a teenager creating content for social media than a federal prosecutor.

Prosecutors, when they can’t make a case, close their files without drawing attention to them. There is no naming and shaming of people they don’t have sufficient evidence against to bring charges. The Justice Department isn’t a tool for a president to deploy against his personal and political enemies. But if you’re Ed Martin and want the press to cover your work before any indictment decisions or grand jury review, that’s exactly what you do. It’s amateur hour at the Justice Department.

Martin also sent a letter to James’ attorney, Abbe Lowell this week. Apparently, he thought he could pressure James into resigning to avoid the threat of prosecution.

Martin suggests that James has made admissions of guilt (she hasn’t) and that her constituents would be best served if she resigned. Martin clearly doesn’t think the people who elected James should get a say in that decision, writing that she should resign for “the good of the state and nation.” He goes on to say that he “would take this [her resignation] as an act of good faith.” He insults Lowell and then begs him to keep the letter—a letter the government has written to his client—“confidential.” He says it would be a “leak” to make it public, which most certainly isn’t the case. Letters like this aren’t confidential government documents. It’s a public one.

Martin has now moved on from mugging to the camera to trying to threaten a public official into resigning after publicizing that he was investigating her. It’s not your grandma’s Justice Department. And it’s not one I recognize. It’s long overdue for DOJ leadership to discipline or remove Martin from his position for this behavior.

“If you touch us, we will come after you,” seems to be DOJ’s new motto. And that’s not Justice.

We’re in this together,

Joyce