What Was That?

Grandpa Simpson visited the Justice Department on Friday, giving a speech that must have given even his handlers pause, a campaign stump speech delivered in front of the Seal of the Department of Justice. It included both swearing—the prosecutions against him were “bullshit”—and an invective-filled screed against political rivals including Joe Biden and lawyers who have brought cases against him.

Trump’s Attorney General, Pam Bondi, started the program, sounding more like a presenter at a TV awards show than an attorney general. She lauded Donald Trump’s accomplishments fighting the war on drugs (although he’s been in office for only two months, not much time for major developments) and praised “the unsung hero Stephen Miller.” It was a political rally speech. It was not appropriate for the Justice Department.

It’s worth taking a beat to reflect on why politics and the Justice Department don’t mix. The power of the prosecutor is expansive. Prosecutors have power over peoples’ lives and liberty. An unscrupulous prosecutor could exercise that power in a fashion that inflicts damage on people who have done nothing to merit it.

Our system contains multiple checks, both internally at DOJ and in the courts, that make that sort of conduct by a rogue prosecutor unlikely and subject to severe punishment on rare occasions where they occur. Even inadvertent misconduct by prosecutors is treated seriously. But imagine a DOJ with no internal checks, a DOJ where “the boss”—the president—demands revenge, and prosecutors are instructed, either directly or, say, in the form of a speech delivered by the president, to go after people he considers enemies using all the power at their disposal. People who haven’t committed any crimes could be prosecuted, possibly jailed. They could be sued civilly. And because there would be power to shield misconduct from public view if DOJ itself has been corrupted—and we’re not talking about just a rogue lone wolf—there are far fewer limits on the damage that can be done.

Trump, for instance, called out lawyers who have brought cases against him in his speech. He has already, through executive orders, excoriated law firms he doesn’t like. He has signaled who he thinks is deserving of punishment. This could end with people in prison for no reason other than the fact that the current president doesn’t like them. And that’s no way to run a democracy. That’s not a democracy.

Typically, an event like this would have been open to employees, and anyone who was interested could have wandered by and listened from the balcony above the Great Hall if the seats down below were filled. NBC’s Ken Dilanian reported that career folks were told they could only go if they had an invite, and few of them were invited. Instead, the Great Hall was filled with Trump supporters, including red state attorneys general and people like Stephen Miller. What came next made clear why that was the case.

It was open season for petty vendettas and old wounds that are apparently still fresh for the president. It was a story in which he was the victim, condemning in others the same behavior he himself freely engages in. It was a speech that diminished both the presidency and the Justice Department in an era where there is already far too much of that going around. And he drew applause, repeatedly, from the crowd.

Trump referred to his former defense lawyers, who now occupy the key jobs at DOJ, by name as people he was with in front of “corrupt judges”—meaning judges overseeing criminal cases and civil cases against him. He referred to a senior counselor at DOJ and said he’d been “watching him on TV these last couple of weeks.” Trump’s political appointees at DOJ and their aides all get what the job is if they want to catch the boss’s attention. And he shouted out former general and former convicted (until Trump pardoned him) felon Mike Flynn “a man who went to hell.” He called Stephen Miller “something very special.”

Trump: “We must be honest about the lies and abuses that have occurred within these walls … They weaponized the vast powers of our law enforcement and intelligence agencies to try to thwart the will of the American people.”

Trump rehashed old grievances: Hunter Biden’s laptop, “spying” on his campaign, unspecified persecution of his family. He claimed outrage over the execution of a lawful search warrant, signed by a federal judge, for Mar-a-Lago, even though it uncovered classified documents Trump had in his possession, precisely what prosecutors told the judge they expected to find based on probable cause. It was a diatribe of lies and grudges.

Trump had trouble staying on topic. At one point, while discussing what he characterized as anti-Christian discrimination, he wandered off into “we did very well with the Catholic vote, so I want to thank them for that.” Rank, political stuff. Trump also mentioned his “mandate”—even though he won the election with less than 50% of the popular vote. Trump attacked lawyers by name, calling out Marc Elias, Norm Eisen, and Andrew Weissman in the course of his speech. He made it clear that he is still stuck on old, unfounded political grievances.

It was a disgraceful speech to give in an institution committed to holding itself outside of politics.

It was also bizarre and meandering, a president off script and rambling. He slipped in and out of talking about Bobby Knight and Indiana basketball, telling a story about meeting Knight, whom he characterized as a fan of his. He said Knight told him to call if he ever wanted to get into politics and gave him his phone number on a slip of paper and then a couple of years later Trump went looking for it and found it in a stack of paper. “It was a miracle,” he said. And then, free association in full bloom, he said that another miracle was his ear, which he gestured to, as a reminder of the July assassination attempt. The crowd applauded. A woman, perhaps Bondi, could be heard offering up an “amen.” Trump returned to talk of Knight’s support for him.

It was every Trump rally you’ve ever seen. But it was delivered in the Great Hall of Justice. In my day, we would have walked out of the Great Hall of Justice if anyone had tried to desecrate it like that. But in this environment, everyone seems to be afraid.

My friend, Law Professor John Barrett, tells the story of a very different speech coming from the Justice Department: “On Monday, April 1, 1940, Robert H. Jackson—age 48, three months into his service as Attorney General of the United States—gave one of his most important, famous, enduring speeches: “The Federal Prosecutor.” He spoke on that day to the country’s chief federal prosecutors, the U.S. Attorneys who then were serving in each Federal Judicial District across the country. They were assembled in the Great Hall at the U.S. Department of Justice in Washington, D.C., for the Second Annual Conference of U.S. Attorneys.”

The speech Jackson gave sat on my desk throughout my tenure in the Justice Department. It was something I reread frequently, and it remains with me. Jackson reminded those prosecutors to be wary of precisely such a man as Trump: “If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor.” Jackson understood that if politics pervaded prosecution, then people could be prosecuted because their views were unpopular or they were out of favor, not because they had committed serious crimes. Jackson, unlike Trump, encouraged prosecutors to guard against this and protect democracy.

Before Pam Bondi, there was another former Florida attorney general who became attorney general of the United States, Janet Reno. In her farewell speech, she said of democracy, “It is a fragile institution. The rule of law is fragile. The rule of law is based on people, and democracy is based on people.” She told prosecutors to do their best to protect it.

A very different message from a very different era.

We’re in this together,

Joyce