The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Fools" Rush In the Department of Justice
Another day, another resignation letter.
The fallout continues from the Eric Adams case. Yesterday, I wrote about Danielle Sassoon's resignation, and Emil Bove's response. Today, Hagan Scotten, another Assistant United States Attorney resigned with a formal letter.
Again, there is much to discuss about the Sassoon-Bove exchange, which I will do in the future after I've had some more time to reflect. Here, I will reflect on one passage in Scotten's letter:
I can even understand how a Chief Executive whose background is in business and politics might see the contemplated dismissal-with-leverage as a good, if distasteful, deal. But any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way. If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.
In recent years, the Department of Justice has prosecuted public officials in high profile cases. In several of those cases, the Supreme Court unanimously reversed the convictions.
In McDonnell v. United States (2016), the Court held that an "official act" must involve a formal exercise of governmental power on something specific pending before a public official. DOJ thought it knew what was a proper exercise of government power. The Supreme Court disagreed. Could it be said that the scores of DOJ employees who brought this ill-fated prosecution were "fools"? Do you know who was the Chief of the DOJ Public Integrity Section at the time? Jack Smith. Was it foolish for a prosecutor to indict a former Governor in a case that garnered zero votes at the Supreme Court?
Jack Smith also led the prosecution of John Edwards, the former Senator and Vice Presidential Candidate. Smith relied on a dubious theory of campaign finance law, and the case yielded a deadlocked jury and a mistrial. (When Smith reported that he had enough evidence to convict Trump, I thought back to the Edwards case.) DOJ did not try that theory again. Was it foolish to bring this prosecution of a former public official when the jury wouldn't even convict?
Fast forward to Kelly v. United States (2020). This prosecution arose from the so-called Bridgegate scandal. The United States indicted members of Governor Chis Christie's administration. The Supreme Court unanimously reversed the conviction. Justice Kagan ruled that the scheme, which did not aim to obtain money or property, could not violate the federal fraud law. Was it foolish to indict a public official in a case that garnered zero votes at the Supreme Court?
In 2023, the Supreme Court decided Ciminelli v. United States and Percoco v. United States. These cases arose over scandal involving funding for a Buffalo Bills stadium project. In both cases, the Supreme Court unanimously reversed the convictions. Was it foolish to bring these cases that garnered zero votes at the Supreme Court?
Sensing a pattern? Another public corruption case pending this term, Kousisis v. United States, will likely yield a reversal. And I think the prosecution against Senator Menendez will meet a similar fate, if he is not pardoned. That doesn't even factor in Alvin Bragg's conviction of Trump, which will almost certainly not stand up on appeal. Lawfare all the way down. Maybe, just maybe, federal prosecutors are not in the best position to determine whether public officials abused their power.
I appreciate that Scotten thinks that the Trump DOJ's approach to criminal prosecution is "foolish." I think much the same can be said for how federal prosecutors have approached public corruption cases for some time. And you don't have to take my word for it. Add up all of the unanimous Supreme Court rulings.
What we have here are two very different conceptions of the federal criminal justice system. On the one hand, Sassoon and her colleagues defend the traditional notion that "independent" prosecutors have the power to define what is in the public good. They can define when public officials abuse their power, and can punish those actions with criminal sanctions. (We saw similar arguments during the first Trump impeachment.) Those defending Sassoon are invested in the DOJ club, and the continuation of its longstanding practices.
President Trump, through Bove, articulate a different perspective. The President, as head of the executive branch, can make his own determination of what is in the public good, and determine when public officials are abusing their power. Trump, perhaps more than any living person, is uniquely situated to make this sort of judgment. From the moment he was sworn in, he faced nonstop litigation (remember the Emoluments Clauses?) and two impeachment trials. After he left office, he was indicted in several courts based on novel and dubious theories of criminal liability. Who can forget the efforts to disqualify him under Section 3--which also led to a unanimous Supreme Court reversals? And despite all that happened, Trump still won re-election. Distinguished prosecutors thought they knew what was in the public good. The voters disagreed.
There will likely be more resignations. But I think little more is left to be said here. There are two diametrically-opposed views on display. And only one such view can prevail.
