Thursday Night Massacre II

“Not Anything Any of Us Ever Expected to See in America”

There never has been an assault on the integrity and professionalism of the attorneys of the Department of Justice—which is to say, on the Department itself—remotely as spurious and brutal as the one executed last week.

It might be the hope and expectation of the perpetrators of the assault that the event will go the way of other rapid-fire attacks on constitutional structure in the last month—that it will pass so quickly that it’s hard to absorb one before the other is at the doorstep.

Thursday Night Massacre

But for any Department alums, that can’t and won’t happen. I know that I personally will be reminding people of the rottenness of the new DOJ regime so long as they remain in office. To quote one of my new heroes, Hagan Scotten—John Roberts clerk, double bronze star winner for valor in Iraq, and until Friday AUSA heading the prosecution team for Mayor Eric Adams—if they thought those who know the DOJ would just register protest and then let it pass, “it was never going to be me.”

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At least four different factors put last week’s mugging in a shameful class of its own. First, DOJ attorneys are accustomed to wrongheaded criticism from political actors and the public, but not scathing attacks from Department leadership itself. Second, the attacks included not just general grousing about prosecutions but direct and defamatory attacks on the probity of individual prosecutors. Third, it entailed despicable collective pressure on a group of esteemed Department career professionals. Fourth, it was anchored in a rank and brazen lie, plain to anyone of any political stripe who knows the Department.

I have quite a lot to say here, and I don’t want to drown you, my loyal Substack followers, in a sea of impassioned prose! Plus, as I mentioned, it behooves all patriots to not let the focus on this singularly repulsive event fade away. So this entry will deal with two of the factors in the paragraph above, and the next will take up the other two. Stay with me please—it’s lengthy, but it’s vital.

1. The core lie. I’ve suggested before that it’s typically useful with Trumpian outrages to start with the lie, which always underlies the subsequent offenses to the constitution and democracy.

The lie here is completely straightforward and not subject to dispute. It was laid out in black and white in last Monday’s letter from acting Deputy Attorney General Emil Bove to Danielle Sassoon, the then acting United States Attorney for the Southern District of New York. Bove ordered Sassoon to dismiss the charges against New York Mayor Eric Adams, and he stated expressly that his decision had been made without assessing the strength of the evidence or the legal theories of the case. He made similar statements to the prosecutorial team in prior meetings.

To any alum of the Department, that was a jaw-dropping concession. It is the first axiom of Department practice—the very encapsulation of doing justice fear or favor—that decisions to bring or dismiss charges must turn on the facts and the law.

And in her eloquent and irresistibly reasoned letter back to Attorney General Pam Bondi, Sassoon zeroed in immediately on this point. She wrote:

“Mr. Bove rightly has never called into question that the case team conducted this investigation with integrity and that the charges against Adams are serious and supported by fact and law. Mr. Bove’s memo, however, which directs me to dismiss an indictment returned by a duly constituted grand jury for reasons having nothing to do with the strength of the case, raises serious concerns that render the contemplated dismissal inconsistent with my ability and duty to prosecute federal crimes without fear or favor and to advance good-faith arguments before the courts.”

That explanation stands now, and will stand always, as a complete moral and practical refutation of the authoritarian bullying in Bove’s letter.

Bondi ducked the letter and had Bove answer it. It’s not uncommon for the DAG to answer a letter written to the AG, although in this case, given the gravity of the issue and the direct appeal to Bondi, it was craven. I’ll have more to say about Bondi later.

Bove’s February 13 response to Sassoon—intemperate, overlong, and fundamentally dishonest—will stand as Exhibit One in the contemptible episode going forward. It begins by saying that he has accepted her resignation (which was high-handed since she didn’t exactly offer it, but leave that to the side) “based on your choice to continue pursuing a politically motivated prosecution despite an express instruction to dismiss the case.” It continues with dripping condescension to upbraid her for “los[ing] sight of the oath you took when you started at the Department of Justice.”

To an honorable prosecutor like Sassoon, this allegation is about as grave an attack on her integrity as there is. Worse, in the Alice-in-Wonderland logic of Bove’s attack, he was using it to insist that she in fact undertake a politically motivated dismissal of a righteous case. And he made the stakes career-defining, forcing her to choose between dishonorable capitulation and resignation.

It’s critical to give careful thought to the charge and countercharge of “weaponization” or “politically motivated prosecution.” While Bove (and Bondi) fling it around thoughtlessly, it necessarily means that political considerations overrode the facts and the law. That is how you can know whether the prosecutorial power has been used for improper political purposes: if a case is righteous on the facts and the law, it is justified no matter the political prominence of the target; conversely, if it isn’t, a prosecution should never be green-lighted for political reasons.

That, incidentally, is precisely why Special Counsel Jack Smith ended his report to Merrick Garland by saying, “the Department's view that the Constitution prohibits Mr. Trump's indictment and prosecution while he is in office is categorical and does not turn on the gravity of the crimes charged, the strength of the Government's proof, or the merits of the prosecution-all of which the Office stands fully behind.” That statement in itself is a full rebuttal of the bogus suggestion, which Trump will never drop, that the Department’s prosecutions of Trump were weaponized or politically motivated.

So in leveling this ultimate charge, Bove was flatly contradicting himself in his previous letter to Sassoon, which expressly said that his decision to order the dismissal of the Adams charges had been made without assessing the strength of the evidence or the legal theories undergirding the case.

The balance of his 8-page screed only serves to weaken his position. Bove repeats the charge of weaponization but tries to hedge his bets by salting the letter with justifications for the dismissal: “election interference, and the impediments that the case has imposed on Mayor Adams’ ability to govern and cooperate with federal law.” Bove’s shifting series of inconsistent justifications—weaponization, election interference, and interference with Adams’ cooperation with federal law, (meaning his support of the administration’s policies on immigration)—are a reliable sign of insecurity at the basic lie.

Each of the justifications is untenable. The interference with election charge is laughable. The New York mayor election isn’t until November.

The suggestion that dismissal is important so that Adams can assist with the administration’s immigration strategy has been the subject of a lot of attention and looks likely to have been a big part of what happened here. Sassoon says in her letter that she attended a meeting in which Adams’ lawyers “repeatedly urged what amounted to a quid pro quo, indicating that Adams would be in a position to assist with the Department’s enforcement priorities only if the indictment were dismissed.” A chilling detail follows: “Mr. Bove admonished a member of my team who took notes during that meeting and directed the collection of those notes at the meeting’s conclusion.”

Adams, predictably, has denied the quid pro quo. And yet, in a humiliating and bizarre incident, went on Fox News Friday alongside the administration’s immigration enforcer Tom Homan, who reiterated Adams’ agreement to play ball (and Adams himself announced, “I’m collaborating.”). While Adams sat laughing uncomfortably next to him, Homan proclaimed, “[i]f he doesn't come through, I'll be back in New York City and we won't be sitting on the couch. I'll be in his office up his butt saying, 'where the hell is that agreement we came to?'"

I think the allegations against Bove and Adams about the improper quid pro quo likely hold up, but for current purposes they are basically beside the point. Once Bove let slip that facts and law had nothing to do with the action he was demanding, the treachery of his high-handed bullying was settled, as was the dishonesty of his outrageous attacks on Sassoon for “pursuing a politically motivated prosecution” and “los[ing] sight of [her] oath.”

2. The ruthless tactics. Next in the catalogue of disgraces is Bove’s ruthless and scornful final move to impose his will on the recalcitrant Department professionals. When the account emerged as rumor Friday morning, it seemed too ugly to be true, even for Bove. Even as I reported the rumors, I called them mind-bending and hedged about their accuracy. But they were dead on: we now know for a fact that Bove summoned the entire staff of prosecutors for the Public Integrity Section and told them they had to choose someone, and within an hour, to sign the motion for dismissal that Sassoon would not. He added the sinister detail that whoever complied with the unethical and unlawful order could be promoted.

The shell-shocked prosecutors of the Public Integrity Unit, arguably the most respected section in all of DOJ, were dumbfounded and distraught. One of them later told a colleague that the discussion was “gut-wrenching” and “not anything any of us ever expected to see in America.”

They debated an en masse resignation until an attorney nearing retirement agreed to the ugly ultimatum to shield his colleagues from being fired. It was roundly regarded as a heroic act of valor against a vicious enemy.

I have referred to Bove’s tactics as “Gestapo-like.” For years, I have attempted to avoid analogies to the Third Reich, if only to keep discussion civil and avoid incendiary distraction. But the brutal pressure on the entire community, each of them blameless, is a page out of the Gestapo playbook.

Notoriously, Nazis would go into ghetto communities and demand a victim, or else they would execute the entire population. Of course, Bove didn’t threaten the group with death if they didn’t produce a sacrificial lamb, just loss of job and livelihood. But the strategy is analogous. It displaced unfair pressure and the dirty work of enforcing Bove’s unlawful order onto blameless victims. The strategy of collective pressure on a group of faultless colleagues is famously morally odious—and it worked.

It worked, however, at an incalculably large cost within the Department. A staff member in Bove’s office immediately stepped down in protest. To no surprise for anyone familiar with Department culture, multiple reports document that Bove’s thuggish tactics have generated outrage throughout the DOJ, and not just at Main Justice but in all 94 United States Attorneys’ offices.

For Bove, there is no recovering from the treachery. I expect that Judge Dale Ho, who still has to consider the Department’s motion to dismiss and decide if it is in the interests of justice, will want to hear from Bove at the hearing. Bove will probably try to resist, though on what legal basis is unclear. In any event, he will be reviled for as long as he remains at the Department, and in fact for as long as the massacre remains in patriots’ memories, which it certainly will.

Talk to you later.