Posted on by rjonakait

The Ethical Federal Prosecutor

Santa Claus, an honest lawyer, and a disgusting, dirty, smelly drunk are on the sidewalk when they each see a leather case on the sidewalk. They rush to it and get there simultaneously. It has no lock, and after a few words, they agree to open it. The case is packed with crisp, wrapped $100 bills. The look at each other, and one asks, “What should we do it with it?” Santa Claus says, “I should get it. I will use it to get even more toys for underprivileged children.” The lawyer responds, “No. I will take it and find its rightful owner for this still belongs to someone. I will go to the police and the courts. I know how to advertise for lost property. I will work hard to return it.” The drunk slurs, “Just give it to me. No one will be happier. I will use the money to stay drunk for the rest of my days and never again have to bother others asking for cash.” Who gets the money? Of course, it is the drunk because Santa Claus and the honest lawyer are mythical creatures.

That joke fits in with the many preconceptions that lawyers are without ethics, but in fact attorneys are in a profession that has some stringent ethical codes. Recent news has highlighted that.

Just last week the Supreme Court decided a death penalty case from Oklahoma. The Oklahoma Attorney General told the Court that the defendant had, in fact, been given an unfair trial because the Oklahoma trial prosecutors had not lived up to their legal and ethical duties. “Confessions of error” are highly unusual, and the Oklahoma AG took much abuse for his ethical stand. (The Supreme Court, to the surprise of many, did actually reverse the conviction.)

More familiar is the situation of New York City Mayor Eric Adams. Last fall Adams was charged by the federal government with various corrupt acts. The case was proceeding to trial when the new Justice Department dismissed the charges indicating that Adams could more effectively carry out Trump’s immigration mandates if Adams did not have to stand trial. They dismissed the case “without prejudice,” meaning that they could bring back the charges later if they so chose. This, of course, “incentivized” Adams to do the bidding of the Trump administration. The apparent quid pro quo looked unethical to many. At least eight Justice Department attorneys did what they thought was ethically demanded of them: They resigned.

More recently, Ed Martin, the acting U.S. Attorney for the District of Columbia, demoted seven or eight experienced Assistant U.S. Attorneys who were involved in January 6 prosecutions. Martin defended the demotions by saying that each U.S. attorney “must assess the needs of the office to achieve the goals set forth by the President and the Attorney General.” Martin cited nothing to indicate that the attorneys had or were performing poorly. Instead, the demotions clearly seemed a retribution for actions taken when Trump was not president. The goal seemed to humiliate the prosecutors for performing their jobs ethically. They are now restricted to handling matters normally given to fledgling attorneys starting out in the office. It seems that the acting U.S. attorney hopes that such a demotion will cause them to quit. This action has raised questions about Ed Martin’s ethics.

These actions highlight the unusual role that attorneys and especially prosecutors have in our federal government. More than a few “distinguished” conservative commentators have said that the Attorney General and U.S. Attorneys must follow the president’s directions “because they work for the president.” That’s just not true. Neither an Attorney General nor other federal officials work for the president. He does not pay them, and no one in the government openly pledges fealty to the president. To take office, an attorney general and other federal officials must vow: “I do solemnly swear [or affirm] that I will support and defend the Constitution of the United States.” The oath is to the Constitution not to a person, not even to a president.

Even though the Attorney General, U.S. Attorneys, and other federal officials are supposed to work for all of us (we do pay their salaries after all) and not for the president alone, the lines of authority are muddled. The president does have a power akin to an employer; he can remove an attorney general, a U.S. Attorney, a Secretary of State, and other federal officers. Furthermore, in the legal area, since the president has been given the constitutional duty to “take Care that the Laws be faithfully executed. . . ,” he can set the priorities and policies for the Department of Justice and the Attorney General. Of course, if what is commanded is unconstitutional, the AG or the US. Attorneys cannot — consistent with their oath of office — carry out the command. On the other hand, even if the directive is deemed constitutional but unwise, the AG can be expected to be removed if she does not comply with presidential wishes.

The president can then seek a new attorney general, presumably after vetting the candidate on the contested issue, but that also is complicated. The Constitution does not give the president the power to appoint any Attorney General he wants. Instead, it says that the president “shall nominate” candidates to be federal officials. The Constitution goes on to say, “and by and with the Advice and Consent of the Senate, shall appoint” the Attorney General and other federal officials. The appointment power is a joint one of both president and the Senate. The Constitution does not constrain the Senate in how it should use its power. It is only a norm or a convention that the Senate gives great deference to the presidential nominations.

Thus, the Attorney General and U.S. Attorneys inhabit a strange territory filled with inconsistencies. The president can set criminal justice policies broadly or for individual cases. He can remove those who do not follow his directives. Nevertheless, they do not work for him. They serve the country and its Constitution. He does not have the sole power to replace them. Rather, he holds that authority jointly with the Senate.

Something similar can be said for other federal officials. If the Secretary of State does not carry out the president’s wishes, he can be replaced, but the situation for prosecutors is even more complicated. They are members of the bar, and the legal profession has ethical codes that lawyers are supposed to follow if they are going to continue in the profession. The bar can take their law licenses or otherwise discipline lawyers who don’t follow the ethical rules. That happened to some lawyers for unethical conduct in pushing the claims that the 2020 election was “stolen.” Some were disbarred; some had their licenses suspended.

All lawyers in addition to the duties of their job owe a duty to the justice system. For most attorneys, this boils down to zealously advocating for their clients in an honest fashion. For prosecutors, however, it is different. They do not have a client in the traditional sense and their ethical duties include, but do not stop at, being a zealous advocate. Incorporating the language of the Supreme Court, the American Bar Association has said: “The prosecutor is an administrator of justice, a zealous advocate, and an officer of the court. The prosecutor’s office should exercise sound discretion and independent judgment in the performance of the prosecution function. . . . The duty of the prosecutor is to seek justice, not merely to convict.”

Federal prosecutors are, thus, in a strange role. The president can set prosecutorial priorities. They don’t work for the president, but he can fire them. On the other hand, they are to use “independent judgment,” “seek justice,” and use “sound discretion” and not just follow orders. Their ethical path is a difficult one, and not all have followed it. What is clear, however, is that the path can’t be trod if fealty to a person is primary and working for justice with independent judgment is set aside.

Posted on by rjonakait · 1 Comment

The White Christmas

A white Christmas for me growing up was not simply that snow had blanketed the ground by Christmas, but that it actually snowed on Christmas. By either definition, I don’t remember many white Christmases. It was often bleak and cold on December 25th in our part of Wisconsin, but at least in my memory the snow, or at least the snow that did not melt away, came later in the season. And since winters did not depart Wisconsin easily, I saw more Easters with snow on the ground than Christmases. In the shadows behind the garage that the sun never reached, there could still be pockets of snow in May.

But there was one Christmas Eve…

Christmas day was largely for playing with new presents and ended with a boring family get-together at Aunt Hazel’s house. I remember little about it other than that the sister and Cousin Margaret lit into the olives at the first opportunity. Instead, as it is for many Germanic and Germanic-descended people, our main focus for the Christmas celebration was not Christmas Day but on Christmas Eve.

By Christmas Eve, the tree would have been up for a week or so. The buying and mounting of the tree were always a difficult process. Now all the Christmas trees I see for sale seem to be nearly perfect—symmetrical with needle-laden branches everywhere and a straight trunk. Not so back then. Finding an acceptable one without too many flaws was always a difficult and time-consuming task, and when it was brought home, much discussion would ensue about which portion of the tree should face the wall to hide the most defects and whether the tree stood as perpendicular to the floor as the often-wavering trunk allowed. Rarely did the family agree on the accepted solution. But the tree was up and decorated well before Christmas Eve.

We opened our presents on Christmas Eve. Nothing was placed under the tree (except for a toy train and a miniature village) before then. I remember that we (I was the youngest of three) were sent to our rooms for a bit. Then there was a “Ho! Ho! Ho!”– now I wonder if that could have been the father—followed by a cry, “Santa’s been here!” One year the family ran to the kitchen window overlooking our backyard. Pointing to a deep, starry sky, one of the parents shouted, “There he goes!” My sister, the eldest, said, “I see him.” (Was this the only time she lied to me?) I looked and looked, but I saw no sleigh, no reindeer, no Santa. I had missed him yet again.

Before the presents were opened, however, we went to a Christmas Eve service at the church. This churchgoing was highly unusual because both parents attended. As far as I can remember, this was the only time of the year my father went, and my mother, at most, went only a few other times a year. (My father drove us kids to Sunday school and then picked us up afterwards. In between he went somewhere else.)

And then one year it happened. We walked into church on this crisp winter night. Even though I can’t sing one note on tune, I have always liked Christmas carols, and, unlike on many Sundays, I enjoyed this service. The last carol was “Silent Night,” then my favorite, and it always gave me a peaceful feeling. We left the church, and there it was: A blanket of snow. During the hour of the service, an inch or two had fallen, and the church steps, the sidewalk, the lawns, the road were all white. The snow was continuing, but it was not so much falling as floating. It was the kind of snow that compelled you to catch some on your tongue. The snow almost hung in front of the streetlamps causing a light that seemed otherworldly. Every pine tree looked like a Christmas tree. It was a white Christmas the way I had imagined a white Christmas should be. It seemed the correctly beautiful and peaceful way to welcome the baby Jesus into the world.

Merry Christmas!