Opinion | Farewell, Justice Department Independence

Over just a few days last week, the Trump administration made a laughingstock of the U.S. Department of Justice. The department’s decision to seek the dismissal of a corruption indictment against Mayor Eric Adams of New York led seven prosecutors handling the case to resign in disgust.

The acting deputy attorney general, Emil Bove, said the indictment should be dismissed in part because the prosecution would interfere with Mr. Adams’s ability to carry out President Trump’s immigration crackdown. To ensure Mr. Adams’s obedience, the indictment would be dismissed without prejudice so the department could resurrect it at any time.

Such an overtly political act is a dangerous departure from the list of legitimate reasons a prosecutor might forgo a prosecution, as Danielle Sassoon, the interim U.S. attorney in New York who resigned rather than carry out Mr. Bove’s order, pointed out in her letter to Attorney General Pam Bondi.

Using the prospect of criminal prosecution to obtain Mr. Adams’s future political cooperation makes the mayor beholden to someone other than his constituents, dangerously crossing a line. Imagine, for example, a president agreeing to hold off bringing corruption charges against a U.S. senator of the other party, as long as that senator signs on to the president’s agenda. In light of last week’s events, this crass scenario has suddenly become plausible.

At least once a generation, the Department of Justice encounters a serious challenge to its ability to impartially enforce the law. Each new generation forgets the lessons of the past.

More than 50 years ago, in the 1973 Saturday Night Massacre, Attorney General Elliot Richardson and his deputy, William Ruckelshaus, resigned when President Richard Nixon ordered them to fire the Watergate independent counsel, whose job they had pledged to protect against political interference. Mr. Nixon resigned under bipartisan pressure after the extent of his involvement in the Watergate cover-up became clear.

In 1978, to ensure that “neither favor nor pressure nor politics is permitted to influence the administration of the law,” Attorney General Griffin Bell established policies narrowly limiting contacts between the White House and the Department of Justice.

In 2006 those rules were flouted when George W. Bush’s Department of Justice told more than half a dozen U.S. attorneys, including me, to resign, without a clear explanation. Congress, concerned that we were being punished for our prosecutorial decisions regarding corrupt politicians, began taking testimony and issuing subpoenas. Under pressure from both Republican and Democratic members of Congress, Attorney General Alberto Gonzales, Deputy Attorney General Paul McNulty and other top officials of the department resigned. The Department of Justice’s Office of the Inspector General, after an investigation, said department officials had engaged in politicized hiring and that in some instances there was evidence that partisan political considerations were factors in several of the firings.

The Office of the Inspector General also found that Monica Goodling, the White House liaison and senior counsel to the attorney general, had searched the internet for the names of candidates for career positions and words like “abortion,” “gay,” “homosexual” and “gun” to glean the political or ideological leanings of the candidates. This was a clear violation of federal law prohibiting politicized hiring.

Eighteen years after that scandal, we face another reckoning about the independence of the Justice Department from White House political interference. But what is happening now is not just an erosion of barriers; it’s a full-fledged breach.

The Watergate depredations led to broad acknowledgment of the need to protect the Justice Department’s political independence.

Those who participated in the 2006 U.S. attorney ousters at least conceded that the department’s work should be apolitical. Ms. Goodling, in immunized testimony, admitted she had “crossed the line” by engaging in politicized hiring. Mr. Gonzales testified, “I would never, ever make a change in a U.S. attorney position for political reasons.” Mr. McNulty testified that removing a United States attorney in retaliation for a prosecution “is contrary to the most basic values of our system of justice.” Regardless of whether they were sincere, they said what the country expected them to say.

But the Supreme Court’s recent decision broadly immunizing the president not only from prosecution for official acts but also, to a large extent, even from being investigated — because the ruling forbids inquiry into a president’s motives when trying to determine whether an act was an official act — makes it far more difficult to maintain the department’s political independence from the White House. This underscores the fact that efforts to maintain that independence, no matter how wise, are not constitutionally required. So, armed with this ruling, this Justice Department isn’t even pretending to be apolitical anymore.

The protections that exist against political interference at the department are frail. None of them — including ethical rules and White House and department policies limiting contacts between the two institutions about criminal cases — are constitutionally guaranteed.

The temptation to co-opt the department for political or personal gain exists for every president, and presidents of both parties have chipped away at its impartiality for decades.

Were White House relations with the Department of Justice under the previous administration pristine? Probably not; they never are. But it is worth noting that both Hunter Biden and the Democratic senator Robert Menendez were prosecuted by the Biden Justice Department.

Will we see prosecutions or even investigations of notable Republicans under the new administration? It seems unlikely. So far, the department’s new leadership appears more interested in childishly scolding experienced prosecutors, among them former Supreme Court law clerks and the recipient of two Bronze Stars, for having the audacity to stand up for the long-held principles that safeguard the department.

What happens to a democracy that openly mixes politics and criminal law and doesn’t even aspire to impartial justice? Maybe we will have to rely more on elected state prosecutors. Perhaps the courts will clean up some of the wreckage, or Republican members of Congress will eventually find their way to voting their conscience. We can only hope that the many young, smart people who are being turned away today will return when adults once again run the institution.

But I no longer take solace in the belief that our institutions will salvage the situation. Many of our elected officials recognize the damage that is occurring but are afraid to speak or act, whether it is out of fear for their jobs or the safety of their loved ones. So let’s just pause to say goodbye to a cornerstone of America’s democracy: a belief in the importance of an impartial criminal justice system.

As the song says, “You don’t know what you’ve got till it’s gone.”

Carol C. Lam, a legal analyst for NBC and MSNBC, was the United States attorney for the Southern District of California from 2002 to 2007.

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