During his presidential campaign, Donald Trump said he would be turning things upside down, and he has kept his promises. All one has to do is to read the latest edition of the New York Times to see how the progressive wing of the Democratic Party is responding: rage, rage, and more rage, as the following editorial declares:
President Trump’s determination to bend the American justice system to his will, combined with his broad tolerance for political corruption and his abhorrence of checks and balances on his power, slammed hard last week into the commitment to duty, honor and the rule of law shared by a group of federal prosecutors in the Southern District of New York and Washington, D.C. The confrontation between Mr. Trump’s lieutenants at the Justice Department — led by his former personal defense lawyer Emil Bove III — and Manhattan’s interim U.S. attorney, Danielle Sassoon, and her colleagues is the clearest example yet of this administration’s efforts to bake quid pro quo deal making, coercive tactics, loyalty tests and other dishonorable practices into American government and warp its long-held principle of equal justice before the law.
The editorial goes on to describe the federal law enforcement apparatus as something one might see on the FBI shows that dominate the CBS network Tuesday nights. That FBI is one in which all agents are impervious to corruption and are crack investigators and crime solvers who rescue the victims of capitalism and white supremacy in the nick of time. However, the real FBI hardly matches the hagiographic portrayal given to it on network TV.
The NYT—along with most legacy media and the Washington establishment—has railed against his cabinet and agency picks, such as National Security Director Tulsi Gabbard as being outsiders who are “unfit for office.” This is being portrayed as “unprecedented,” yet Jimmy Carter’s original picks to head the DOJ, FBI, and CIA all faced serious opposition, with Sen. Joe Biden being the one who killed the CIA nomination of Theodore Sorenson because these nominees were seen as being “outsiders.” Furthermore, Carter found his own administration accused of firing a US Attorney David Marston, who was investigating allegations of corruption against two Democratic members of Congress, in order to cover up legal wrongdoing.
In other words, what Trump is doing is not totally unprecedented, but certainly the extent of what Elon Musk and his DOGE group are doing is beyond anything we have seen in our lifetimes. However, the expanse of the federal government is much greater than anything that can be justified in a free (or at least once-free) society and needs to be challenged no matter who does it. How one responds to the current chaos depends upon one’s view of the federal government apparatus and its contributions to our daily lives.
Are US Attorneys Selfless Public Servants?
The editorial pages of outfits like the NYT would have us believe that the US attorneys that resigned after the Trump DOJ called for corruption charges to be dropped against New York Mayor Eric Adams were just selfless public servants wanting justice to be done. While I have not looked deeply into those charges and therefore do not feel comfortable in addressing their veracity, I have enough experience researching federal prosecutors and the FBI to be skeptical of their actions.
About 40 years ago, Rudy Giuliani was the US attorney in Manhattan, and he led a popular campaign to “clean up Wall Street.” While the NYT and Wall Street Journal claimed that the feds simply were going after “insider trading” and other illegal activities, the substance of the criminal charges they brought against figures like Michael Milken and the principals of Princeton Newport Partners was sketchy at best and dishonest at worst. (The details are fleshed out in Daniel Fischel’s Payback: The Conspiracy to Destroy Michael Milken and His Financial Revolution.)
While it is questionable as to whether Milken and others committed felonies, there is no doubt that Giuliani and his lieutenants broke the law on a regular basis by leaking grand jury testimony to the NYT and WSJ, with each leak punishable by up to five years in prison. Not surprisingly, these “selfless” public servants who only care (according to their media benefactors) about the rule of law never charged themselves with felonies despite the fact they knew they were breaking the law.
As someone who has written extensively about federal criminal law, it shocks the conscience to know how federal prosecutors operate and how they can manufacture “crimes” out of mundane acts that in themselves are not criminal. Candice E. Jackson and I wrote in 2004:
During the last century, especially in the last three decades and in the aftermath of the September 11 attacks, Congress has made federal crimes out of an astonishing array of behavior, much of which is already prohibited by state law, could be better addressed with civil penalties, or is considered wrongful not because it violates anyone’s rights but only because Congress says so.
As the number of federal crimes have proliferated, so has the federal prison population:
In 1981, when Ronald Reagan took office, there were about 20,000 federal prisoners, a figure that rose to 53,000 by 1989. The number has more than tripled since then, to about 171,000. The number of federal prosecutors also has shot up, from about 1,500 in 1981 to more than 7,000 today.
We continued:
Of the approximately 77,000 defendants convicted on federal charges in 2001, 97 percent pleaded guilty or no contest. Out of the more than 121,000 cases opened by U.S. attorneys that year, only 5 percent involved violent crimes such as rape and murder (most of which were connected to other federal crimes). Forty percent of the cases involved “public welfare” offenses such as regulatory and immigration violations, and more than 30 percent involved drug offenses. In 2001 only 10 percent of the people incarcerated in federal prisons had committed violent crimes.
To put it another way, the real choice for most federal prosecutors is determining whom they will charge. Once they make up their minds to target someone, finding charges is not difficult. One is reminded of Lavrentiy Beria, the head of Stalin’s secret police, who famously said, “Show me the man and I’ll find you the crime.”
Indeed, not only did the NYT cheer on the proliferation of federal crimes, but its journalists benefitted from the lawless behavior of federal prosecutors, as the newspaper aided and abetted the commission of felonies—all the while claiming to honor the “rule of law.” I wrote in 2010:
The NY Times, Wall Street Journal, and other mainstream media enabled Rudy Giuliani’s Wall Street witch hunt two decades ago. Unfortunately, we found that journalists will help prosecutors commit felonies and file questionable charges, as long as the prosecutors claim to be “fighting capitalism.”
Trump Obviously Doesn’t Have Pure Motives
Trump and his aides are marching through the FBI and the DOJ, raising the body count as they seek to settle scores. Such emotions are understandable even if one cannot always endorse the actions that flow from them.
During Trump’s first term, FBI agents clearly lied in their attempts to tie the president to the false story that the Russians had helped Trump to steal the election, yet no one faced any meaningful sanctions. This was not a case of overzealousness; it was dishonesty.
One wishes that Trump was not acting out of a desire for revenge, but one also wishes that the principals in the DOJ had acted with integrity instead of lying to try to force Trump out of office by any means possible. Moreover, when people are engaged in this kind of bloodletting, there is no way it will be a surgical operation in which only the bad actors are purged.
However, the notion that federal prosecutors and FBI agents represent a higher class of people who hold a special kind of honor is better reserved for TV shows created by Dick Wolf. This is not the case of the good guys purging the bad guys as much as it is a political massacre that probably needs to happen, given how the federal criminal apparatus has turned into a monster that can only be brought to heel by someone using the nuclear option.
