Resignations expose illness at the DOJ

Roger Stone will have his place in history, but not merely for his role as a gadfly in the president's once-inner circle. More significantly, he will be remembered largely for exposing a terminal illness at the Department of Justice.

Last Tuesday, high-level officials at the DOJ, reflecting the sentiment in President Donald Trump's tweet that Roger Stone was being mistreated, took the extraordinary step of overruling and withdrawing a sentencing recommendation submitted to the court by the career trial attorneys who had prosecuted Stone. That same day, the four career prosecutors withdrew from the case. One resigned from the DOJ.

Let's be clear: By making the position of attorney general of the United States a presidential appointment, the Founding Fathers gave us a structure for federal law enforcement that was fraught with risk. The ability to direct or impede federal criminal investigations is a powerful weapon in a president's toolbox, because it can easily be deployed by a president to promote his or her personal agenda. It is a weapon gratuitously brandished by dictators, and Americans have traditionally been loath to see it wielded by their president. The infamous "Saturday Night Massacre," which saw Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resign rather than carry out President Richard Nixon's order to fire Watergate special prosecutor Archibald Cox, is perhaps the most widely recognized example of a president's attempt to instrumentalize DOJ for his own personal interests, and it ended badly for Nixon. But there are other historical hints of similar temptations at the DOJ: For example, the firings in 2007 of several United States attorneys (of which I was one) who may not have pleased political appointees with their prosecution choices, and Bill Clinton's ill-advised meeting in 2016 with Attorney General Loretta Lynch while his wife was under investigation.

What forces exist to counteract a president's urge to pull the levers at the DOJ to further the president's own personal agenda? The protections are few, and they are fragile. Senator (and former Rhode Island U.S. Attorney) Sheldon Whitehouse, in the wake of the 2007 firings of U.S. attorneys, noted that before George W. Bush took office, only four White House aides were authorized to discuss DOJ investigations with only three DOJ officials but during the Bush presidency those numbers grew to more than 800 aides and officials at the two institutions. Senator Whitehouse proposed a bill to legislatively restrict such communications; it was shelved when Attorney General Michael Mukasey agreed to voluntarily implement restrictions at DOJ. (Senator Whitehouse re-introduced the bill in 2019.)

Other than attempts at legislation, the safeguards for keeping law enforcement even-handed are surprisingly few, but until recently they largely worked. Those safeguards included: the better instincts of good people, the oath to serve the United States and its Constitution, the mandate to "do the right thing," and the invaluable comfort career prosecutors had in knowing they would be supported by their superiors if their motives were pure and their actions reasonable. But such traditions are easily overwhelmed in an administration staffed largely by people with little or no public service background, or who believe in almost limitless presidential power.

Even as I was being fired from my position as U.S. attorney in 2007, my view of the durability of the DOJ institution remained intact. Even as those events devolved into congressional hearings, internal investigations and a criminal investigation of DOJ leadership, I knew on some level that it was just another round in the hardscrabble game of political appointments, with the elbows-out jockeying that takes place among presidential appointees and those who eye such appointments as political favors. Convinced that the American people would ultimately not tolerate a corruption of our criminal justice system, I did not fear for the fundamental mission of the DOJ.

But the rumblings caused by the Stone case are different. These are deep-earth movements that have exposed cracks in DOJ's classical-style walls, and I no longer have the same sanguine views of the lasting integrity of the DOJ.

A resignation by a career employee for reasons of principle differs in nature from a resignation by a political appointee. It means that there has been a failure in the institution itself; it means that no one between the career prosecutors and the political appointees was willing to risk his or her own job to defend an employee. Maybe these officials didn't have the guts to do so; maybe they didn't know they were supposed to; maybe they didn't want to. But the Department of Justice always has to manage the delicate balance between presidential authority and presidential abuse, and here it was the job of DOJ management to uphold the former while preventing the latter, even if it meant their own jobs. But they didn't.

At the end of the day, the prosecutors of Roger Stone spoke with the only voice career prosecutors have when they believe they have witnessed a moral or ethical transgression by their superiors: they resigned from the case. These resignations should not be mistaken for a silent protest. They are shouts meant for our ears. They should be heard, and acted on. 