The Perversity of Trump’s DOJ

Ed Martin, call your ethics officer

Law enforcement agencies enforce laws.

At least that’s what they’re designed to do. But Donald Trump’s Department of Justice is turning that widely accepted idea on its head.

The DOJ is designed to pursue justice without fear or favor. But that is its role concerning individual defendants. In the overall tripartite system of federal power, the Department is not a disinterested party. Rather, it has a stake: it urges Congress to pass, and the courts to uphold, clear laws that permit it to go after dangerous people. It wants to act within constitutional limits, both because Department attorneys swear an oath to the Constitution and, more practically, because it’s a huge hindrance to secure a conviction only to have it reversed for constitutional error and be sent back to square one.

So when the Department weighs in with a court, it states its interest upfront and is forthright about its institutional role in keeping the country safe from guilty offenders. More generally, while the Solicitor General is commonly known as the Administration’s advocate in the Supreme Court, former SGs will tell you that an even more important part of their duties is to formulate and apply the Department’s institutional interests in cases around the country.

But in the few short weeks since Trump operatives have been atop the DOJ, that principle and practice already have given way to the paramount value of whitewashing Trump’s federal offenses.

That’s what happened in the Mar-a-Lago case after the Trump team took the reins. Recall that, in addition to Trump, the Department had also charged two co-conspirators, Walt Nauta and Carlos de Oliveira. The evidence Jack Smith developed indicated that the two men, acting on Trump’s orders, obstructed the investigation by trying to hide the documents Trump had illegally retained from the authorities.

Judge Aileen Cannon dismissed the case, holding that the Department lacked the authority to appoint Jack Smith as special counsel. That holding was flawed. It contradicted the Supreme Court’s unanimous discussion in the Richard Nixon case, as well as the holding of every other court that had considered the issue. And, of course, it added to a series of dubious pro-Trump holdings from Cannon.

So, the Department of Justice, acting through Smith, appealed the case to the 11th Circuit, which most observers expected to reverse and possibly even to recuse Judge Cannon in the process.

That appeal was pending when Trump won the election, which effectively brought the prosecution as it pertained to him to a dead halt based on the generally accepted principle against prosecuting a sitting president. But the charges against Walt Nauta and Carlos de Oliveira remained intact.

At this point, the Department’s litigating interest was clear—in fact, elementary.

Judge Cannon had held that the Department of Justice lacked the authority under its own regulations to appoint a special counsel. It’s manifestly in the Department’s interest to be able to appoint a special counsel in cases of potential conflicts of interest—for example, when the Attorney General is a political appointee of the president’s political rival. The legacy of Watergate and other public scandals is that a prosecutor operating outside the normal chain of direct control by the Attorney General is essential for the public to accept the result.

That’s why, for example, even Trump said on the campaign trail that he would appoint a special counsel to go after Biden, as opposed to just directing his Attorney General to do so.

Of course, Smith’s appointment didn’t keep Trump and allies from railing against the prosecutions and persuading his supporters that it was a political hit job by the Biden Administration. But anyone who knows how the Department works knew that was a lie.

Would it be in the interest of the Department of Justice—any Department of Justice—to reverse Judge Cannon’s outlier ruling? There’s no doubt about it. The Department would rather have the option to appoint a special counsel than not to have the option.

First, even the mere inconsistency of the law on the important question of whether the Department of Justice has the authority to appoint a special counsel casts a shadow over any special counsel appointment.

Second, it directly constrains the Department in the Southern District of Florida and possibly the 11th Circuit.

So the easy decision here for the Department was to await the 11th Circuit ruling, which hopefully would reverse Cannon and clarify the DOJ’s authority. Even if the president was determined to exercise his pardon power to spring de Oliveira and Nauta, there was no reason not to wait for the 11th Circuit to act and then pardon Trump’s loyal henchmen.

But that’s not what the Department did. Instead, it quietly moved to dismiss the case against the two remaining defendants, thereby cutting off any chance for the 11th Circuit to bring consistency to the law and reinforce the Department’s important authority to use special counsels, which now remains cloudy.

And it may well be that part of the reason for the decision was to keep Cannon’s roundly criticized ruling on the books simply because it went in defendant Trump’s favor and (see principle #1) that makes it good. On this reasoning, the Department includes in its definition of its own and the public’s interest anything that helped Trump when he was a criminal defendant. That’s more obeisance than the Royalists paid to George III.

Another clear perversion of the Department’s interest is underway now in the U.S. Attorney’s Office for the District of Columbia. It has to do with the Department’s response to the Supreme Court’s opinion in Fischer v. United States, decided in 2024. The Court held that a charge used against many of the January 6 defendants, 18 U.S.C. §1512(c)(2), required destruction or alteration of evidence, not just general disruption of a congressional proceeding.

The Court in recent years has made it something of a practice to reverse DOJ interpretations in white-collar cases, and in that sense, Fischer was familiar territory. In any event, the routine and proper DOJ response in such cases is to regroup under the guidance of the Solicitor General and determine which cases involving that charge could still be brought, including under another statute.

After all, there was nothing about the reversal that called into question the basic criminality of Fischer’s conduct, or that of the other January 6 marauders. They still stormed the Capitol in an effort to prevent the peaceful transfer of power. But the Department needed to either bring another statute or conceptualize §1512(c)(2) in a way that continued to permit prosecution under that provision.

That’s an entirely sensible thing for the Department to do after a Supreme Court ruling narrowing a statute. I’ve been involved in similar efforts. The idea is to scrupulously respect the Court’s guidance but still look to prosecute culpable defendants whose conduct can be reached through the narrowed statute or another.

In this case, the Department went through that exercise and concluded it could still reach the conduct of many, though not all, of the January 6 marauders.

But that was before Trump’s lackeys took control of 950 Pennsylvania Avenue. Ed Martin Jr., the new interim United States Attorney for the District of Columbia, has launched the “1512 Project,” a comprehensive internal investigation into the Department’s deliberations to salvage the January 6 convictions after the Fischer case.

Martin—the first appointee to run that office in over 50 years who has served as neither a federal prosecutor nor judge—has described the process as a “great failure of our office” and announced a priority to “get to the bottom of it.” In a gratuitous, nasty move, he ordered the top supervisors in the office to conduct the internal reviews of their subordinates’ decision-making after the Fischer case.

Martin should be nowhere near a review of the January 6 prosecutions. Federal regulations require DOJ employees to disqualify themselves from participating in any investigation where they have been substantially involved in the subject matter, where they have a specific and substantial interest that would be directly affected by the outcome, or where their participation would create an appearance of bias.

Those standards apply to the head of an office no less than line prosecutors. When I was United States Attorney, one of our investigations potentially implicated a relative. I was immediately recused, and the only question was whether the entire office had to be recused as well.

Martin, an inveterate election denier who tweeted from the January 6 rally that there was “nothing out of hand,” has been a consistent and passionate advocate for the January 6 defendants. He has represented some of them in court (including one case that he now, on behalf of the Department, has asked the court to dismiss), and he’s raised money for their defense. One of his first acts in office was to dismiss the January 6 cases. Then he moved to fire about 30 prosecutors for the sole reason of their involvement in the January 6 cases.

Martin’s title is interim United States Attorney for the District of Columbia. Though, in a comic and perfectly Trumpian touch combining pettiness, vanity, and dishonesty, he has directed his office to drop the “interim” in court filings. He must be aware that every U.S. Attorney’s Office has an ethics officer to consult on questions of recusal, among other issues. Word to the wise: he needs to walk down the hall and ask the ethics officer about the propriety of involvement in any matter having to do with the January 6 offenders whom he so ardently championed.

The more important point is the striking ignorance and tendentiousness of Martin’s insinuations that attorneys in his office acted improperly in attempting to cabin the damage of the Fischer opinion. He has ordered up an investigation that he already has prejudged with his assertion that the office’s conduct post-Fischer was a “great failure.” His view seems to be that the proper professional course for the office in the wake of Fischer was to dismiss all §1512(c)(2) charges and abjure any further effort to bring the charged defendants to justice.

Worse, he appears to be spoiling to penalize members of his office based on his twisted view, without a sliver of evidence that they acted improperly.

All of this, of course, directly contradicts the actual interests of the Department of Justice and the United States Attorney’s Office. It champions the cause of the bad guys, it slaps around career professionals for doing their jobs and upholding their oaths to the Constitution, and it communicates to the office and the world that the Department has no higher interest than glorifying the President.

It’s a consummate through-the-looking-glass reversal of 100+ years of DOJ practice—not simply ignorant but perverse. The day will come when it is remembered with deep shame. For now, it falls on all of us, but especially DOJ alumni, to keep the spotlight on the unprofessional, immoral practices of the Trump crowd and stand up for its victims within the department.

Talk to you later.