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- [00:00]
A
There is a really strong deep seated culture among the career civil servants at the Justice Department that takes very seriously the fact that they take an oath to support and defend the Constitution and laws of the United States.
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B
Welcome to the first episode of Is this Really Legal? I'm your host, Liz Oyer. I've worked as a lawyer for over 20 years, and I've seen the justice system from every angle. I worked for a large law firm, then as a public defender, and then at the Department of Justice as the pardon attorney. Today, we are going to go inside one of the most important legal institutions in America, the Department of Justice, AKA doj. DOJ is in the news constantly. There's a lot to cover because DOJ has many different roles and many different responsibilities. But it can also seem really confusing and mysterious. To make sense of all the news coming out of the Justice Department, you need to know what the place looks like from the inside and how it's supposed to work. That's our mission for today. And I have the perfect guest to help us. He's a veteran of the Department of Justice. He was a top official there. He knows what's hiding behind the curtains, and he's going to give us a VIP backstage tour. Peter Kiesler, welcome to Is this Really Legal? And thank you for being our first guest.
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A
Pleasure to be with you.
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B
Peter. You worked in the Justice Department under President George W. Bush. You had several important roles there. You were the acting Attorney general. You were the Assistant Attorney General for the Civil division. You've also worked inside the White House as a lawyer. You now work with the Washington Litigation Group, which is a nonpartisan, nonprofit legal organization dedicated to defending the rule of law. In short, you have a wealth of knowledge that we are going to tap into today. I want to start by talking about what the Justice Department does. We often think of it as a prosecutor's office, and it is, but it does a lot more than criminal prosecutions. Can you give us a breakdown of what different roles and responsibilities DOJ has?
- [02:07]
A
Sure. You know, the department functions something like the federal government's principal law firm. And there are a lot of different functions that are subsumed within that. But I think the most important work it does falls into three principal buckets. So first there is law enforcement, and that includes very much what you just said, Liz, criminal law enforcement. Because all of federal criminal law enforcement is centralized at the Department of Justice. That includes criminal investigations, which is what the FBI and other investigative agencies do. They're all part of the department. It includes the prosecutions and it includes the things that happen after the prosecutions. The Bureau of Prisons is in the Justice Department, and as you certainly know, the pardon attorney who advises the President on pardons is in the Justice Department, too. There's also a lot of civil law enforcement, because not every statute that we have to abide by has criminal penalties like incarceration. And sometimes it's just fines and penalties and court injunctions. And much of the federal government's work on civil enforcement, environmental laws, tax laws, civil rights laws, antitrust laws. That happens at the Justice Department, too. So that's one bucket, which I just think of as law enforcement. Second bucket is defensive litigation. Everything I was just talking about are situations in which the government takes somebody to court, but people outside the government take the government to court all the time. And the Justice Department does most of the federal government's work representing the government when the government itself is sued. This can happen when, say, somebody who is about to be deported challenges the lawfulness of their deportation. When a government contractor who provides a weapons system to the Defense Department thinks the Defense Department isn't abiding by the terms of the contract. When a public interest group says a whole government program is unconstitutional, the Justice Department is representing the government in justifying what the government is doing to judges. And then there's a third function which I think is probably least well understood because it's the most private and the least public, and that's providing legal counsel throughout the government. That's an internal function. The President has a constitutional duty to, and these are the words of the Constitution, take care that the laws be faithfully executed. And that duty applies throughout the government to all of his appointees. But the law is complicated, so sometimes there aren't clear answers, sometimes the right answers are debatable. And there are a lot of people in the government who don't have a law degree. And so the Justice Department is the principal agency in government that the President and others rely on to help understand what the lines are between lawful government behavior and unlawful government behavior.
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B
So the three buckets that you've identified, the prosecuting aspects, these law enforcement aspects, you refer to it as defending the United States as the second bucket, and then advising federal agencies who do all sorts of different things throughout the government. That makes sense. Can you give us a rough idea of what percent of the Justice Department is dedicated to each of these functions? Are they equally important functions? Is there one that's. That's bigger or more important than others?
- [05:29]
A
Well, the litigation function, both the criminal enforcement and Civil enforcement and civil defense. That's the lion's share of, in terms of being resource intensive and requiring lots of personnel. There are 93 U.S. attorney's offices throughout the country staffed with litigators who are doing this all the time. And it's just an extremely, as I said, resource of intensive function because there are thousands and thousands of cases that are happening, all of whom require one or more lawyers to be representing the government. The advice giving function, there is a smaller core of lawyers that are doing that. And you know, they work with lawyers in every other department and agency to do. I mean, lawyers are just there throughout the government. But the premier legal advice agency in the government is the Justice Department's Office of Legal Counsel. And that's a smaller, more elite group that shoulders a lot of that kind of work of giving advice to the rest of the government about where the legal lines may be.
- [06:36]
B
So the Justice Department is actually a massive organization. I think that sometimes people think of it as embodied by the Attorney General and the Deputy Attorney General and these few high level officials who are kind of the public face of the Justice Department. But to perform all the functions that you've described takes a very large number of people. The justice department has over 100,000 employees nationwide. They're not all in Washington at this headquarters known as Main Justice. They're spread out around the country. Can you tell us who comprises that, that workforce? We know, I think most of our listeners will know that the Attorney General is appointed by the President, but who else works in the Justice Department?
- [07:17]
A
So you have the litigators who are in these U.S. attorney offices, which I mentioned. There are 93 of them throughout the country. You have some states like Rhode island, which are small enough that they have one, and you have some states like New York that need to have four of them. But that's one set of the cadre of Justice Department employees. And they are spread throughout the country because usually the way this works is they're think of them as branches of a bank or a company. They're all part of the Justice Department, but they're geographically dispersed because cases are arising throughout the country. Then you have the investigators. The FBI has thousands of agents and other employees who don't themselves litigate cases. Most of them are not lawyers. They are investigators. They're the people that go through documents and lead investigations and knock on people's doors and do the kind of work that feeds into the decision whether people get prosecuted or not. And then, of course, there are a variety of other people performing other functions at Justice. But I will say this. I mean, I think you're so right to point out that we all read about attorneys General and deputy attorneys general. The core of the Justice Department are these hundred thousand plus lawyers and agents and other employees who are career civil servants who stay there from administration to administration and do perform the core work of the Department. And you know, I would say this. I mean, I worked with those people intensively. And there are two things that strike me about how they go about doing their work that I think it's helpful for people to understand. The first is that there is a really strong deep seated culture among the career civil servants at the Justice Department that takes very seriously the fact that they take an oath to support and defend the Constitution and laws of the United States. You know, in Great Britain a few centuries ago and other monarchies, people took oaths to serve the King, and here we take oaths to serve the Constitution. And so there is a very strong sense among this core hundred thousand plus people that you mentioned that that is their job, fidelity to the law, and that that's something that should be apart from politics. At the same time, they very much understand that a part of that constitutional system is that a president gets elected by the people, and he's not only leader of the country, he is the head of the executive branch, and the Justice Department is part of the executive branch. And so within very broad parameters, the President gets to make the policy calls. And these career civil servants, they not only recognize that, they embrace it, they're proud of it. They're proud of the fact that they served multiple administrations of different political parties. They may have voted for the President, they may have voted for the other person. They may agree, they may disagree, but their job is essentially the same from administration to administration, which is to give their best advice, make their recommendation as to whatever problem is at hand, and then when the decision is made, whether they agree or disagree, to faithfully implement it as long as it's within the law. And those two things, that oath to support the Constitution, but that recognition that the constitutional head of the executive branch is the President who gets broad discretion subject to limits, those two things work together.
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B
So you have talked about civil servants, and I want to make sure that our audience understands why, what that term means. Those are the employees of the Justice Department who are not selected by the President. They're not political appointees. They are expected to serve regardless of who occupies the White House, and they're not chosen by the President or by any political process. What proportion of the workforce is made up of those civil servants versus officials like the Attorney General and the deputy attorney general who are appointed. Appointed by the president. Political appointees they're called.
- [11:22]
A
The overwhelming majority are the civil servants. That layer of people who come in with a new administration and leave when that administration leaves to be replaced by a new president's designees. That is a very thin layer. It is the layer on top. It is the layer that is leading all of the major cabinet departments and agencies. But they are supported by this vastly larger core of civil servants who stay from administration to administration, who put their expertise to work for whomever is in charge, and who have certain protections under the civil service laws so that their jobs are not subject to the political tos and fro's of elections.
- [12:08]
B
So those people, Peter, are sometimes, I know this because I was one of them, sometimes get a bad name. The, the swamp, the deep state. The civil servants who work inside the Justice Department. How are those people actually chosen? And is there any truth to that myth of the civil servants being the swamp?
- [12:26]
A
You know, it's such a terrible way to describe people who are, first of all, deep experts, second of all, in most cases, deeply devoted to serving the public. These are people who are chosen through competitive merit based processes. That's what the civil service system was all about. We didn't always have it in our country. It was something that came into being in kind of the late 19th century, early 20th century, as people started rebelling against the notion that every time a new administration would come in, the whole of government would swap out and the criteria for being hired would be whether you were a crony or ally of a particular president. And it was recognized that just like any company, any operation, you need a core of people with expertise and non partisan, non political dedication that extends beyond that. And that's what the civil service represents. And that's, you know, in every cabinet, department, justice as well as the others, that's the core of the people who are performing the work.
- [13:36]
B
That's a really good point. I mean, if the whole government switches every four years, it's also just disruptive to the ability to get anything done. Many of the Justice Department's investigations go on for years and sometimes even a decade in some of the really complex ones. So if the entire staff of the place swaps out whenever the administration changes, it's just very difficult to get anything done. But I think the fact that these investigations can continue under multiple administrations illustrates how non political most of the work of the Justice Department actually is.
- [14:09]
A
Absolutely. And the whole system is designed to strike a balance between two critically important values. One is the importance of expertise and continuity and stability in performing these really important functions. And the other is the necessity for political accountability. Elections have to matter. And so the way our system balances those two really important goals is the leadership. On top of these agencies, Justice Department included, are the politically appointed people chosen by the President. The core of the workforce are the civil servants. And that has generally served us really well.
- [14:46]
B
One thing that I think a lot of people are surprised to learn is that the job that I held, the pardon attorney, although the job is to advise the President about the exercise of the clemency power, it's not actually a political appointment, it's a career position. Can you explain why some of these higher level positions that do involve advising the President are occupied by people who are not appointed or chosen by the President?
- [15:12]
A
I think there are a couple of reasons. You know, one is simply the fact that they require and are best done by people who have the background and expertise to be familiar with the kind of the broad run of kinds of cases that come up. So you talk about the pardon attorney. You could have a new pardon attorney every four years, but wouldn't it be better to have somebody who has seen it all for multiple years, understands how different Presidents have exercised the power, understands the range of cases that come before it, the kinds of considerations that have been traditionally taken into account, and can advise the President from that vantage point? And the other thing is, it's good for people to know that with a function as sensitive as the pardon power, there is somebody who is part of the process, not the decision maker, but somebody who is part of the process, who brings that perspective to bear. And I think most Presidents would be grateful and want there to be somebody providing them advice that can give them that perspective. The pardon attorney, as you know, doesn't have the power to grant any pardons. At the end of the day, the President makes the decision. The President can disregard the recommendation, but it's good to have that kind of professional experience and background to take into account and to be part of the process. That's, again, part of that balance between having the ultimate decisions made by politically accountable people who reflect the election, but to have an input and implementation of that handled by people with a somewhat broader perspective.
- [16:48]
B
So one thing we have seen during the past year or so, which is somewhat unusual, is we've seen a lot of stories about important employees leaving the Justice Department, career civil servants leaving the Justice Department in some instances because of things that they are asked to do or told not to do, or political directives essentially coming from the leadership of the department. What should a career civil servant do? What can we expect that a career civil servant would do if they're presented with a directive from the political leadership that they don't feel that they can abide by or that they're not comfortable abiding by?
- [17:26]
A
Right. Well, I think everybody ultimately has to decide for themselves whether they're in a job that they feel in good conscience and ethically they can perform. And so, you know, within the government, I think generally resignation is something that most people think of as a last resort, but a resort that has to be available to you if you are asked to do something you feel you cannot do. But it's important to define what it means to say you cannot do it. Mere disagreement with a particular policy is really not enough of a reason, I think, for somebody to resign. If you take one of these jobs, you take them, recognizing they're going to be Democratic presidents, they're going to be Republican presidents, even if it's a president you voted for, that president may make decisions you disagree with. And if you're not willing to be part of an organization where sometimes you're going to be implementing decisions you disagree with, you don't belong in the civil service. But the flip side of that is there are still some really important limits. Law and ethics impose some limits on what anyone should be required to do. And if you find yourself in a position where your superior is directing you to do something that you think is fundamentally unlawful or unethical, then I think your first step is to do everything you can to persuade them that they're wrong. But ultimately you're responsible for what you do. And ultimately, if you're directed to do something that you feel is improper, that's the point where you have to, I think, resign.
- [19:04]
B
One thing that has that jumped out at me that I read recently, is that data shows that somewhere around 20% of the justice Department's lawyers have departed in the last year or year and a half, around 3,000 and change lawyers have left the Justice Department. Is that unusual to have that level of attrition, and does it concern you?
- [19:28]
A
It is completely unprecedented and it's tragic, and it's a function of a lot of different things that are going on at once. Some of the people who've left the Justice Department have been fired, and in many instances, many of us believe fired illegally. I mentioned earlier that the civil service laws protect people's tenure at the department. If they're performing well, that's part of the idea of a civil service. But in this administration, there have been a lot of firings that have been motivated not by views about the merits of what people have been doing, but really about very nakedly and openly partisan political considerations. Just to give you an example, Todd Blanche, the acting Attorney General, recently boasted at a public gathering that everyone and anyone who was involved in any way in the investigations of Donald Trump before his second term have been removed from the department. Now, you know, if you think about the FBI agents who worked on those cases, they didn't work on those cases because they were raising their hands and volunteering because they wanted to get the president. They were assigned to the cases they were worked on, were working on. And they did their job by performing their assignments with integrity. But merely because they were assigned, for example, to execute the search warrant on Mar a Lago, they get fired. That is so antithetical, not only to the sort of the notion of our civil service laws, but more basically to propositions of good government. And it starts looking a lot more like a retaliation campaign than about any effort to staff the government with people who are going to responsibly exercise their functions.
- [21:11]
B
Well, Blanche said that those people have a conflict of interest because they have investigated the person who's now the sitting president. Is that a conflict of interest in your mind?
- [21:22]
A
Of course not. I mean, they performed their job, they did what they did, and they reported up their chain, and then they're ready to take the next assignment. When we talk about a conflict of interest, we generally talk about a situation where somebody has a current interest that would interfere with them impartially doing whatever job they've been assigned to do. Like if you own stock in a company and you're assigned to decide whether there should be an enforcement action taken against that company, that's a conflict of interest, because you have interests on both sides. The fact that you loyally discharge your assignment in one case to be part of one investigation doesn't really create a conflict with any future investigation at all.
- [22:05]
B
So the Justice Department is part of the executive branch, which means it falls under the authority of the President. What is the typical role that the president plays, and what is the President's responsibility or duty for overseeing the functions of the Justice Department? Can you explain how that usually works and sort of how it's working now?
- [22:29]
A
You know, it's such an interesting and important question, because there are really two parts to the answer. In order to understand it There is what the President's formal legal authority over the Justice Department is, and there is what the practice has actually been. And there's a really important gap between the answers to those two questions. As a matter of formal legal authority, the Supreme Court has said the President has ultimate authority over the Justice Department's decisions about, among other things, criminal investigations and prosecutions. And the President, of course, chooses who he will nominate as Attorney General, subject to the Senate's advice and consent. And the President can fire the Attorney General for any reason, as this President recently did with Attorney General Pam Bondi. So the President, as a formal legal matter, has a lot of authority over the work of the Justice Department. As a matter of practice, recent presidents, at least since Watergate, had exercised something you really don't see a lot of in Washington, which is self restraint as to the wielding of power. Usually people wield their power, whatever they've got, to the limits. But presidents, Democratic and Republican, ever since Watergate, have internalized a very kind of different view with respect to their relationship with the Justice Department. And that view in particular says that a President will not get involved in the individual decisions about whether a particular person or institution does or does not get criminally investigated, does or does not get criminally prosecuted. It's fine for a President to set broad priorities for the Justice Department. I want you to focus on gang violence or corporate crime or civil rights. But when it comes to those specific decisions, should this person have the weight of the law thrown at them? The President has stayed out. Now why has the President stayed out? Don't presidents have views about these things? Of course they do. But I think there have been a couple of reasons why Presidents have said that's a place I shouldn't go. And the first is, and maybe most important is that a President who wants an effective criminal justice enforcement process has to know that his or her involvement with that process will weaken it. And that's because, you know, people at the Justice Department, they do this for a living. They see hundreds and hundreds of cases. They are really in a good position to apply the traditional criteria to making these decisions so that we can, like cases are treated alike. If a President episodically got involved, you know, that would be. It would be impossible for any President to replicate the kind of careful, standards based process that the Department of Justice uses. And it would inevitably give rise, quite possibly justifiably, to a sense that the process had become subject to political whims, that who you knew, whether you were an ally of the President or An opponent was deciding whether or not you got investigated, prosecuted. So part of it is just a recognition that the process works better as a matter of good government if the President stays out of those individual kinds of decisions. But there's also another, maybe less high minded, motivation, which is that Presidents have understood, at least since President Nixon was almost impeached and had to resign, that that kind of manipulation of the criminal justice process would be a scandal, that Congress would react, that the American people would react, and that it would be bad politically for a President to be seen as pulling those strings. So whether you think of it as a high minded dedication to the government or a concern with political standing, until now, that's a place that presidents have not gone.
- [26:23]
B
I think it has been really jarring to a lot of people to see these headlines about the President directing the Justice Department to investigate and prosecute certain people. It's not something, as you said, that we're used to seeing from Presidents in the past. Can you explain how the Justice Department normally makes the decision about who to prosecute? Where would you start and what would the decision calculus involve in normal times?
- [26:50]
A
So in normal times, the run of the mill case and even some of the most sensitive cases would start in the office of the line Assistant United States attorneys, in the U.S. attorney's offices around the country, and in the Criminal Division and other divisions of main justice in Washington, D.C. that have authority over criminal law enforcement. And the process you go through is really. There are three things you ask yourself, and I'm obviously simplifying to some degree because these are very complex judgments involving often unique facts and complicated statutes. The first question you ask yourself is, do you believe a crime has been committed? If you don't think a crime has been committed, then full stop, there's nothing more for you to do. You don't go after people in the criminal justice process because you think they're bad people. You think they deserve to have a hard time. You have to think that a crime has been committed, but that's just the beginning, that's not the end. Second question is, do you think you can prove it with admissible evidence that will get you a conviction in court that will be sustained on appeal? So, you know, there can be a lot of instances. There are a lot of instances where an attorney in the Justice Department might conclude that he or she is absolutely certain somebody committed a crime, but they have good reason to doubt they'll be able to prove it in court. Sometimes the evidence they would need isn't admissible. Maybe it was obtained through an illegal search. Sometimes a witness whom the prosecutor finds deeply credible, the prosecutor concludes a jury would not find credible. Maybe they have unrelated things in their past that would make them subject to disbelief by the jury. Whatever the reason is, There can often be a gap between believing that somebody committed a crime and believing you can get a court to find that. And if you don't think you have a sufficiently good prospect of getting a conviction that can then be sustained on appeal, you stop there. And then the final question is probably the most nebulous, which is just, is it in the public interest to pursue this prosecution? And, you know, the best way to describe that decision making process is just by way of an example. It's because of that third step that every marijuana possession case wasn't prosecuted. Because the Justice Department has limited resources, the courts have limited resources. You're always thinking, what is the most appropriate kind of crime? What is the most appropriate instance? What serves the public interest for us to be focusing on? And is this a prosecution that it would. That would serve the public interest to pursue? So that's the general process, and it is extraordinarily guided by the history of what is done in similar cases. It's very hard to come on a case in isolation and make that determination. But what the Justice Department has is this institutional repository of people who have looked at different kinds of criminal cases across the board and developed, as best they can, a reasonably consistent way of making sure that people who do the same things are treated the same.
- [29:55]
B
So are there actually any rules that bind prosecutors? We hear about the idea of prosecutorial discretion, which sounds like maybe they get to make some judgment calls, these prosecutors. What are the governing rules that apply to a prosecutor in the Justice Department who's making decisions about what cases to bring and what cases not to bring.
- [30:16]
A
So there are, I would say, speaking broadly, two big sets of such rules. One is internal. There's something called the Justice Department manual, which is a very lengthy document that provides the guidance and rules and procedures and principles that are supposed to govern all federal prosecutions. Some of that stuff is very specific, relating to specific statutes or types of prosecutions. Some of it is very general, but extremely important. For example, the Justice Department manual specifically says that no one can ever be prosecuted because of, or the decision can even be influenced by matters like race or sex or the person's political affiliations or any personal feelings by the prosecutor. That's an extremely fundamental principle that the Justice Department tries to make sure its prosecutors live by. So there are all these sort of internal rules and principles, but there are also external rules and principles, and the most important are those contained in the Constitution itself. So what I just described as being contained within the Justice Department manual, it really is just a reflection of something that the Constitution already protects, which is that there's an equal protection clause, there's a due process clause, and it's long been held that prosecuting somebody because you have a personal grievance against them or because they're a Democrat or a Republican, and you're the other thing, those things don't merely violate an internal Justice Department manual, they violate the Constitution.
- [31:57]
B
So I think some of our audience would want the simple answer to the question, can the President direct the Justice Department to prosecute his enemy? Can the Justice Department be directed by the President to prosecute a specific person, and would that be legal?
- [32:15]
A
Well, if the President is directing the Justice Department to prosecute somebody because they are his enemy, no, it would not be legal. But it's not, because the President is directing the Justice Department, it would be illegal for the lowliest assistant United States Attorney, a Department of justice employee, to prosecute somebody because they were his enemy. So that principle kind of isn't affected by whether it comes from within the Justice Department itself or from the President. Either way, if the President is going to be making prosecutorial decisions, he is going to be subject to the same restrictions that the Constitution imposes on every attorney in the Department of Justice. Now, there's a separate question, which is, can the President call up the Justice Department and say, let's assume there wasn't a bad motive? Let's say the President was perfectly, you know, legitimately motivated, that he thinks someone should be prosecuted. And can he call up the Justice Department and direct them to do it? Well, first of all, in my experience, when I was there, that never happened. Obviously, it's happening to some extent today. The President has even tweeted instructions to his Attorney General to prosecute some of his enemies? I mean, it's really quite extraordinary and unprecedented. That's where you get to our discussion earlier, which is, as a formal legal matter, does the President have the authority to direct the Justice Department? Perhaps, yes. But then what is the response? Well, someone receiving that call, that might be where you say, I need to resign, because I don't think I can perform my job in the way I need to, in the way that will be and will be perceived to be fair. If I'm taking orders from the White House about decisions like whom to prosecute. And then when it got to court. A court might say if they think that prosecution was based on the defendant's political affiliation or the fact that he'd publicly criticized the president, then it would become unconstitutional and the case could be thrown out of court. So there are a lot of checks along the line. And these all just underscore why presidents, you know, at least until now, have said, even though I might have, as a technical, formal, legal matter, the power to direct the Justice Department, I'm going to be in a world of hurt if I really try to exercise that power and test its limits from the
- [34:39]
B
perspective of the public. Why does it matter? Why should we care about the President wanting the Justice Department to prosecute specific people or meddling in the day to day business of the Department in a way that most presidents haven't?
- [34:53]
A
So there are so many reasons. Let me start first and foremost with the narrowest, but maybe the most important, which is that it's terribly unfair and life changing for the person who's a target of that kind of thing. I think we have a broad consensus in the country, just as a matter of fundamental fairness, that if two people do the same thing, engage in the same conduct which may or may not be a crime, whether or not they're investigated or prosecuted just shouldn't depend on whether one of them is a Democrat and the other is a Republican, or whether one of them supported and contributed to the President and the other publicly criticized them. We all believe that that kind of decision, if they've done the same thing, the decision should be the same for both of them. And to put somebody through the hell of being investigated and tried and threatened to ruin their reputation and even their, and even take away their liberty, that that shouldn't turn on the politics of the situation, it should turn on the merits of what they've done. So, and that's, that alone would be enough to say you don't want the president using the criminal justice process to target his or her enemies. You need that process to remain neutral. But there are so many other kind of collateral damages that are created when a president abuses the criminal justice system in this way. And I would just mention two, which is first, it absolutely impairs the Justice Department's ability to perform the rest of its functions in the most fair and effective way possible. Justice Department looks like and is of course, a very powerful institution when you look at it from the outside, but it is critically dependent upon trust and credibility from all sorts of other institutions, from judges, from the citizens who comprise juries, from witnesses, from people who need to trust it to report crimes. And when people start perceiving it as being a political institution that favors one side of the political debate and unfairly seeks to punish the other side of the debate, then they're all going to be less willing to trust it. And there are so many important righteous prosecutions that the government needs to be able to bring and needs to be able to make stick. It is terrible for the department to be perceived by all these other participants in the process as badly politicized. And the other thing I would say is it has even a broader effect on the country as a whole. Because if people think that one of the costs of speaking out against a president is that they could have the legal system come after them, then they're going to be inhibited, and we're seeing that happen. Now. I talk to journalists who tell me they have never had the kind of difficulty they have now in simply getting people to be willing to go on the record. I talk to people who work for nonprofits who try to raise money, who say that people are sometimes saying they'll contribute money if the nonprofit is known to be adverse to the president, only if they can remain anonymous. And when you think about the whole prospect of kind of a frightened citizenry who, you know, people who don't want to speak out, who don't want to be publicly identified with a particular position, that's just a disaster for the country because we really depend on robust debate and people being free to speak their minds. That's something the country was founded on. We don't want to lose it.
- [38:24]
B
So, thinking about the future, I know you and I and a lot of other alums of the Justice Department are thinking about what that institution will look like in the future. How will the next attorney general rebuild the trust that has been eroded by some of the actions that have taken place during this administration? What does the attorney general need to do? And are there any precedents for that or lessons from history that we can draw on?
- [38:52]
A
You know, I think the best lesson from history comes from the Watergate years and the post Watergate years, because, look, that was the time when you had a president who abused the Justice Department and other institutions of government like the IRS in order to go after his enemies and put a shield around his friends and allies. And in that case, obviously, it led to his resignation. And his successor, Gerald Ford, who was his vice president, came from the same party, appointed Edward Levy to be attorney general. And Edward Levy set himself the mission of rebuilding and restoring a Justice Department with a Culture and an understanding of, you know, its role being, at least in the area of criminal prosecution and enforcement, nonpartisan and non political. And then a whole bunch of legal structures were added at that point as well to help support that. It was, you know, there were inspector generals that these are internal watchdogs that were created not only at justice, but at all government departments and agencies. Congress, I think, had a newly assertive role in understanding its obligation for oversight and to police the behavior of the executive branch. The media, which had been, you know, one of the key elements exposing Watergate, you know, saw itself somewhat differently, I think, after that point as having this key investigative role. And there was a whole. Both specific laws, but a whole broader culture that grew up around trying to prevent that from not happening again. And I think, you know, you will have to have something like that in the next administration whenever that comes into office, if they have a different sensibility than the current one.
- [40:46]
B
Does Congress have a role to play here? Are there reforms that Congress can legislate, or is it totally at the discretion of the next Justice Department to operate differently?
- [40:58]
A
Well, you know, Congress has a lot of power here. It often goes unexercised, but Congress controls the Justice Department's appropriations. Every top nominee to the Justice Department has to get confirmed by the United States Senate. And, of course, Congress ultimately writes the laws that the Justice Department has to enforce. And so there are a lot of levers of power that Congress can use. And, you know, we actually saw some of that just in this last week because, you know, your listeners who have been following the news know that there was a highly controversial decision by the Justice Department to establish a fund of $1.7 billion, ostensibly, but not really as a settlement of a somewhat meritless case that the President had personally brought against the government. But this was going to be a fund that, you know, in its words, would compensate people who had been the victims of government weaponization. But, you know, people on the Hill were very worried both that the whole thing was unlawful, but also that was it would be a vehicle that would provide money, for example, to people who had committed very violent acts against law enforcement officers on January 6, 2021. So Congress actually used some of those levers we were just talking about. It had planned to authorize funding for immigration enforcement, but the senators left town without doing that as a way of sending a signal to the administration that it just couldn't stomach this fund. There's certainly been some suggestion that it will be more difficult for people involved with the fund to get confirmed by the Senate if they're nominated to high positions. And now there are some members who are actually talking about writing into law a prohibition on any use of public funds for the kind of function that this fund was going to be directed towards. So that, I think is a real world example, right from, you know, this week's headlines of how Congress, if it wants to assert itself, really can. I think the problem is that the instances of Congress choosing to assert itself in recent years have been. Have been too few and far between.
- [43:14]
B
What do you think are the most important issues that citizens who are feeling overwhelmed by the news but don't want to lose sight of the things that are really important should be paying attention to? There are so many stories coming out of the Justice Department that require some attention to detail to unpack and some understanding of the legal system. And I think it can just be exhausting for people who are reading this. So what do you think are the key things that folks should really be paying attention to?
- [43:41]
A
Well, I think there are a variety of, you know, canaries in the mine, so to speak, that should alert people that things are happening that are not normal and not proper. So, I mean, first of all, I think if you look at what's happening with who gets prosecuted and who gets pardons, and you look at it and you say, well, it really does seem like it matters whether you're an ally and friend of the president, whether you've contributed to his campaign or whether you're somebody who's spoken out against him. And it seems to be that people in the first category get pardons and the people in the second category get prosecuted. You know, that's a sign where you can apply your common sense and say something's really askew there, that the process is being distorted for political purposes in a way that's really damaging. Another thing, you know, you look at it and you say, if you see money flowing to people that seem to be insiders or favored by insiders, well, that seems to be a problem. And this compensation fund that we just talked about where people who are part of the activity on January 6th and who committed violent acts against police officers were going to get large payouts from the government, or when the president himself seems to have gotten, as the acting attorney general has given him, a broad release not only of himself, but his family members and companies from all liability under any laws that they might have violated, including terminating audits, tax audits that had been conducted of his companies, you look at that and you say, that's not right. That's not normal. That seems like pretty basic corruption type stuff. And then, you know, the other thing to look at and to watch for and that we've been seeing that is not normal is the degree to which federal judges, appointees of both Democratic and Republican presidents, have been cataloging the number of instances in which the federal government and the Justice Department have violated court orders or made misstatements or worse, you know, dishonest statements to courts in the course of litigation. That is not normal. I have not seen the way I'm seeing now, judges writing lengthy opinions, cataloging how many times they and their colleagues orders have been disobeyed. So when you see that, that is also kind of a sign that something important has broken down. And I guess the fourth thing is the flip side of this thing about the judges is when you see the administration denouncing the courts in the particular terms that they use, that's also when you know something's really amiss. Look, I mean, when I was in the government, there were a lot of court rulings we disagreed with. Some of them I might still think are wrong, but it was always a feeling. The judges were a critical part of the process. They were independent. They were established by the Constitution. And they're the ones that hold the rest of us to account when they have cases before them and they rule against us, right or wrong, we respect their judgments. And when you see the president and his other appointees calling judges lunatics and saying they should be impeached and removed from offices simply because he disagrees with their rulings, that's just another sign that I think people applying their common sense can say something is really breaking down within the system that we haven't seen before.
- [47:12]
B
So that harm that has been done to the legitimacy of the Justice Department in the eyes of the courts and in the eyes of the American people. Is that something that you think can be undone? Can we come back from that?
- [47:26]
A
I think we can come back from it, but I think, you know, these things are always, in some ways, it's always easier to wreck something than it is to rebuild it. You know, wrecking something, particularly trust and credibility, can happen in an instant. Building it up requires a lot of time. And I'll just, you know, to take one context in which, you know, this is true. Now, we've talked about people getting fired or forced out or resigning because they. They can't ethically and lawfully do what they're being told they have to do. You might say, well, when there's a new administration, they'll all just come back. I don't think it's going to be that easy. First of all, you know, people move on with their lives. They take other jobs, they have families they're contributing to. They cannot sort of go in and out, you know, on the, on the flip of a switch. But I think it's even deeper than that, which is, you know, these are people who loved their jobs, who took great pride in the work that they were doing, who imagined them working in those jobs maybe for the entirety of their professional life, but if not that, for many, many years, then, you know, they went through this, this particular experience. Then you ask them, well, hey, we've got a new president, you should come back. And they're going to say to themselves, well, am I just four years away from a similar bloodbath? You know, that was, that was horrible. I don't want to risk doing that again. So I think it's going to be a challenge. As I said, it's just easier to break something than it is to put it back together. And I think the process of putting this back together is going to be a longer term goal and piece of work than it took to break it down.
- [49:20]
B
Well, I'm there for it. And just to leave our viewers with a little bit of cause for optimism, as someone who litigated against the Justice Department for 10 years as a federal public defender, I never thought it was a perfect institution. I had some notes going in when I started at the Justice Department. And I think the optimistic way to look at this moment is as an opportunity to build this institution back better and stronger. And there are a lot of experts that, like you, I know who are going to be there assisting with that effort.
- [49:53]
A
Well, thank you. And look, I would say what you just said is so important. I don't want to get into the mode of saying the Justice Department used to be this flawless, golden place where all of the thousands of employees were always, well, motivated and always did the right thing. You know, no institution is like that. There were failures and lapses across many different administrations, but the system as a whole always tried to do the right thing. And when there were failures and lapses, there were mechanisms to deal with it. What is so challenging about the current moment is that the people at the top don't seem at all to be committed to that vision of things. And the mechanism that were designed to help prevent this are being neutralized or degraded in different ways. And so I absolutely, you know, I think you're absolutely right. I think a new attorney General is going to, at some point when we have a new administration, issue a call to service. I think a lot of people like you will respond, and I think it will be a great mission.
- [51:05]
B
Well, Peter, I really can't thank you enough for being our first guest on this show. I do want to ask you one final question, because one part of this program is going to be accepting questions from the audience, things that people are asking. And a question that is coming in a lot right now is about Todd Blanch, the acting Attorney General, who used to be the President's personal lawyer. And what a lot of my audience is asking is, is that a conflict of interest? Is there any issue with the acting Attorney General, who may soon be nominated to be the Attorney General, previously worked for the President as his personal lawyer. What's the difference between the role of the President's personal lawyer and the Attorney General of the United States? And is there any. Any conflict or concern that you have there?
- [51:56]
A
Well, of course, first of all, it's a wholly different role. When you're somebody's personal lawyer, your job is to advance their personal interests, subject, of course, to the boundaries of law and ethics. And when you're the Attorney General, you may report to the President, but ultimately you serve the country. Now, that doesn't mean that there's a categorical prohibition on somebody who was a personal lawyer of the President also taking on a role in the administration. The way our system usually deals with that is it identifies the specific matters in which, because of your prior involvement, you need to recuse yourself, which means not participate. And so there is no overall bar on this. I think with respect to Todd Blanche, the concern would be less acute if it weren't for the fact that so, so much of what he's doing now, he is still acting like the President's personal lawyer when he signs a document purporting to give the President and his companies and all of his family members immunity from any prior tax audits or any other liability for anything they might have before the government, which is what Acting Attorney General Todd Blanche has done that feels like somebody who is not acting in the country's interests, but is acting in the interests of his former client. So, you know, I think it is not, it's not a great practice to put your personal lawyer as Attorney General, but it's been done. You know, John Kennedy put his brother as Attorney General. The real question is, what do they do when they're in their job? And the real problems today are that the current acting Attorney General does seems still to be acting as if he's the president's personal lawyer.
- [53:49]
B
Peter, we have covered a lot and I feel like there's a lot more that we could cover. So I definitely want to have you back on the show and I want to thank you for being such an incredible first guest. I also want to thank our audience for tuning in to the first episode of Is this Really Legal? If you found this conversation useful, please follow the show wherever you listen, tell your friends, and leave us a review that will help us to build this community of people who want to do their part to protect the rule of law. If you have a question you want me to answer on a future episode of the show, you can write to me at ask Is this really legal.org or you can leave a message at 202-495-1458 and you can find all of our videos and content at Is this Really Legal? On YouTube, Instagram, Substack, and TikTok. Until next time, thanks everyone.