The president’s recent attacks against Special Counsel Robert Mueller and Deputy Attorney General Rod Rosenstein, preceded by the firing of three top law enforcement officials, should alarm anyone who believes in the rule of law. The president decried the investigation into Russian election tampering as a “witch hunt” and vilified the special counsel and his team as “very bad and conflicted people.” Today, he attacked his own deputy attorney general who had authorized the independent probe in the first place. The president’s surrogate even suggested the special counsel might be fired. These are threats to the investigation, the public’s faith in it, and the public’s faith in the criminal justice system.
As a Republican who spent two decades in law enforcement, I believe it is time for all of us, legal professionals and laypersons, Republicans, Democrats, and unaffiliated, to take stock of this situation and also reflect on how politics, biases, and personal interest can damage the legal system and investigation of cases.
A good place to start is agreeing on a set of basic principles on how we hire and fire law enforcement officials, and what we expect of them while they are in office. The workings of the criminal justice system should be insulated from undue political influences. Law enforcement officials should be hired and fired based on their competence and ability to be fair and just. Individual cases and personnel should be insulated from politics and personal animus, and the justice system should work fairly regardless of which party is in power.
It is impossible to have a completely apolitical justice system, and politics plays a necessary role at higher levels of law enforcement. For example, in the selection of officials, and in the prioritization of scarce resources to investigate and prosecute certain types of crime over others, such as pursuit of drug crimes, financial crimes, or violent crimes.
We must be wary when politics attempts to improperly influence individual cases. Attempts to manipulate the result of a particular investigation for personal or political reasons are dangerous because it interferes with the process by imposing one group’s desired outcome. Similarly, attempts to fire or otherwise damage individuals pursuing particular investigations are improper.
Competence and fairness, not politics, should be the selection criteria.
Politics are involved in the selection of heads of law enforcement agencies. Law enforcement officials are appointed or elected throughout our federal and state governments, and neither method is perfect. Elected positions include State Attorney Generals, District Attorneys and County Sheriffs. Elections require political affiliations, campaigns, donations, and everything that entails. Appointed positions include the FBI Director, the United States Attorney General and deputies, United States Attorneys, Superintendents of State Police, and some District Attorneys. Though an appointment process avoids some of the issues associated with elections, politics remains present in both the selection, oversight, and termination of the official.
Whatever the selection method, there’s a general consensus that the official should be qualified and fair, and should then lead the office in a competent, just, and apolitical manner. When officials are selected based on fundraising prowess, political magnetism, cronyism, or personal loyalty, it does not bode well for justice. Such an official may not be able to resist personal or political attempts to influence a case.
In 2002 I was hired by Robert Morgenthau, the District Attorney of New York County, and worked in his outstanding prosecutor’s office. Though an elected official, Morgenthau insulated his prosecutors from the pressures of politics, press, and public opinion. I joined a culture that was transparent and straightforward, and the Morgenthau ethic permeated the office—do what is just. Most prosecutors’ offices also work fairly, filled with dedicated public servants trying to do the right thing.
This article focuses on current events, but undue influence of politics into justice is not unique to the present, nor to a particular party, nor to the national level. There have been circumstances when public and media outrage might have spurred a prosecutor to bring a case prematurely, which is a disservice to the public, victims, and defendants. Some prosecutors may be tempted to bring a case to garner press coverage. There have been election campaigns for prosecutor positions where candidates made irresponsible claims or promises. This short-circuits the proper investigative process, predisposing a given outcome if that candidate is elected. Voters, candidates, and prosecutors should not prejudge a result in advance of a thorough and neutral investigation.
Be skeptical when respected law enforcement officials pursuing an investigation are fired or demonized
It is disturbing if law enforcement officials are terminated for pursuing an investigation that powerful people want shut down. Consider this a firing for competence—a discharge based upon fear they might be successful in finding the truth and obtaining the evidence to prove it.
The Watergate investigation is a historical example of this. Special prosecutor Archibald Cox was zeroing in on President Nixon, who—as it was later revealed—had long tried to impede the investigation. Cox sought White House audio tapes which contained damning evidence of this, and Nixon resisted. Nixon directed the Attorney General to fire Cox, which the Attorney General refused to do, and the “Saturday Night Massacre” ensued, though eventually Mr. Cox was fired by someone willing to do so. In sum, Nixon caused Cox to be fired in order to impede the investigation.
Recently, surrogates for President Trump floated the suggestion that he might cause special counsel Robert Mueller to be fired. This mere possibility is frightening—it gives the appearance that a law enforcement official might be fired to prevent an investigation from proceeding properly. Perhaps it was also a threat, an attempt to prevent Mueller from becoming too assertive in his pursuit of justice. This should be viewed in proper context, since President Trump has already fired FBI Director James Comey, U.S. Attorney Preet Bharara, and Acting Attorney General Sally Yates. By most accounts, all four law enforcement veterans are ethical, competent, and dedicated professionals. Mr. Mueller’s selection was initially praised by President Trump and many from both parties, yet a short time later the president himself and his surrogates have taken to demonizing Mr. Mueller. Has Mr. Mueller’s character and judgement changed drastically within a month? Or is there something else motivating the recent denigration?
Former FBI Director James Comey has been both hero and demon for each party, and there are many in both parties who have flip-flopped on their view of him. Initially, his actions in the Hillary Clinton email investigation were condemned by Democrats, yet praised by candidate Trump, Senator Sessions, and others supporting Trump. Despite the previous praise, the Trump administration pointed to these actions as the initial justification for Comey’s termination, along with smears about his supposed poor leadership. This pretext was soon abandoned, when President Trump indicated that Comey was fired because of the investigation relating to Russia. If Comey was indeed fired because of the Russia investigation, that is alarming. Professional law enforcement officials pursuing a case should not be terminated to disrupt an investigation, for political considerations, nor to protect an individual, his friends, or associates.
If the administration manufactured a pretextual excuse to disguise the true reason Comey was fired, that is even worse, because it reflects a deliberate attempt to conceal the true motivation, speaking to a nefarious intent. In the latest twist, President Trump appeared to revisit the original pretext while attacking Deputy Attorney General Rod Rosenstein—another respected career prosecutor—for having recommended Comey’s firing, and for leading the “witch hunt” investigation.
If Comey was a fair, competent, and dedicated law enforcement professional—which most agree he was—termination should be an extreme remedy. When law enforcement takes action, especially in high profile cases, it is going to anger someone. There needs to be room for reasonable disagreements, and even honest mistakes. The ten year term of an FBI director works not only to keep him or her from becoming too entrenched and powerful, but to insulate the FBI from undue political interference.
Comey was not the first high ranking law enforcement official to be fired unexpectedly by the Trump administration. In March, Preet Bharara was fired from his position as United States Attorney for the Southern District of New York, even though President Trump had personally told him he would stay. Mr. Bharara oversaw a prosecutor’s office with tremendous capability as well as jurisdiction over incidents that conceivably might involve President Trump. What changed in the time period from personal assurance to termination? If Mr. Bharara was fired to thwart an investigation relating to the Russian meddling or the Trump campaign, then that too would be a disturbing interference with the criminal justice system.
Mr. Bharara was not even the first prosecutor to be fired by President Trump. On January 30th, Acting Attorney General Sally Yates was fired when she refused to enforce the “travel ban” executive order. This firing presents many issues tangential to this article, but let’s remember she too was a career professional prosecutor, who swore an oath to uphold the Constitution and to do justice. Obeying that oath is a duty that overshadows winning a case, or obeying a superior—even if that superior is the president of the United States. Disagree with her decision if you want, but don’t vilify her, especially since many courts have ruled that the executive order was indeed unconstitutional.
Threats to jail political opponents
Nor were the firings of these dedicated law enforcement professionals the first salvos against our criminal justice process. “Lock her up” was a frequent chant at Trump campaign rallies. The approval and encouragement of this chant by a candidate and his surrogates was damaging to our criminal justice system and the perception of it. There are voters within the United States and observers outside who obtained the impression that our country tolerates campaign goals that include putting a political opponent in jail. Even more disturbing is that candidate Trump himself promised to put Hillary Clinton in jail if he was elected.
Someone interested in fairness and justice—or at least the outward appearance of it—will promise a fair and thorough investigation. The law enforcement process needs to start with a thorough investigation. Obtain facts, then perform reasoned analysis. Evaluate whether the case can be proven beyond a reasonable doubt, then consider whether bringing that case is in the interests of justice. If a case is brought, there is a long process directed by a neutral judge which might—or might not—result in conviction. If there is a conviction, there needs to be thoughtful analysis about what is a fair punishment, and jail is only for the most serious of offenses and offenders.
The rallying cry and threats to jail Clinton appeared to dispense with the concepts of fairness, justice, and process, and even seemed to dispense with the Constitutional guarantee of “due process” for every criminal defendant. The chant cheapened the perception of the criminal justice system and treated it as a personal tool to punish opponents. Two prominent former U.S. Attorneys were involved in the campaign, and they were in a position to understand the harmful significance of the chant. They could have tried to dissuade the candidate and his supporters from this path, but sadly appear to have encouraged it.
We all play a role
We should all be vigilant against attempts to politicize, influence, or undermine the justice system. Politicians have the most power to exert, but all of us play a role too. If your personal feelings cause you to prejudge an investigation before it has started or completed, then stop and reflect. Consider if you would feel the same way about an issue if the shoe were on the other political foot. Some seem to have double standards based upon whether the actors and interests are Democrat or Republican, and that should not be. Law enforcement should be politically neutral when they do their job, and that means we should be politically neutral when analyzing or second-guessing whether they did their job fairly or not.
Focus on the quality and integrity of the individuals and process, and realize we will sometimes disagree with the results. A principled official will not misdirect the proper outcome of a case simply to appease the party in power, the public, or the media. Law enforcement officials should not be immune from criticism or oversight, but nor should they be demonized simply because we disagree. A culture of politicized law enforcement would be bad for our country, regardless of which party is in charge at the moment. Partisan politics, wrongful terminations, and rapid turnover can damage hard built experience and culture in an office.
Hiring the right law enforcement official is important. When you vote for a state Attorney General, District Attorney, or Sheriff, vote for someone who is ethical, competent, and justice minded. Don’t vote for someone just because they share your party affiliation or political beliefs, or they campaigned on a promise to achieve a particular result in a particular case. When your elected officials appoint a U.S. Attorney General, U.S. Attorney, or FBI Director, demand that similar criteria are applied. It is better to obtain a competent and fair official, even if one disagrees with some—or most—of their political views.
The termination of law enforcement officials should get special attention, given today’s current events. Competent prosecutors should not be terminated for doing their jobs or for pursuing cases that relate to serious national events or powerful people. Firing competent law enforcement officials without fair cause, or based upon an improper or pretextual motive, is dangerous to the investigation and our system. We must take special notice if a president fires someone overseeing an investigation that touches upon the presidency.
Let’s remember that Russia meddled in our election, our process, and our country. There must be a thorough investigation of this, no matter where the facts and investigation lead. Without a thorough investigation, we will never know what happened, and how to prevent it next time. That means following the money, examining the relationships, and following all leads until they result in evidence or a dead-end. It means investigating any attempts to obstruct the investigation. The investigation must be conducted by competent, justice minded professionals, and fortunately we have that in the Special Counsel, Mr. Mueller. We must be wary of attempts to improperly influence the investigation, or to terminate, attack, or smear the professionals charged with carrying it out. We should recognize that labeling the investigation a “witch hunt” demeans and attempts to short-circuit a process that must be allowed to continue. One could even argue that it demonstrates that there are indeed damning facts to be found—thus the strong desire to shut it down, and to discredit those who may find such facts.
In general, let’s do our part throughout the criminal justice system, to focus on selecting and retaining law enforcement officials based upon competence and fairness, not politics.
In our current crisis, let’s pay careful attention to any attempts to undermine the Special Counsel’s investigation.