The Justice Department’s lawyers were once considered the gold standard for prosecutors, with an appointment as U.S. attorney considered a pinnacle of many careers. But over the past year and a half, the bar has been dropping considerably. With an unprecedented spate of grand jury rejections and judicial admonishments, the DOJ’s credibility has eroded to the point that courts should no longer trust the men and women who are meant to speak on behalf of the United States at trials.
We’re witnessing a downward spiral precipitated by the Trump administration prioritizing loyalty to the MAGA agenda over hiring and retaining qualified legal candidates. Many of the lawyers who are now serving under acting Attorney General Todd Blanche have little to no courtroom experience under their belts. As a result, even what is normally considered the easiest part of a criminal case has become a minefield of uncertainty and hotbed of misconduct.
It’s the kind of basic foolishness that even an attorney in their first year out of law school should know to avoid.
Federal prosecutors hoping to convince a jury to convict must provide proof beyond a reasonable doubt that the defendant is guilty. Obtaining an indictment from a grand jury, on the other hand, merely requires convincing a panel of citizens that there’s enough evidence for a prosecution to proceed to trial. While President Donald Trump has pushed for more politicized prosecutions from the DOJ, a growing number of grand juries have refused to accept the charges presented to them — and some federal lawyers are now willing to do whatever it takes to move their prosecutions forward.
Last week, a federal judge in Chicago threw out charges against four Democratic activists, the last remaining members of the so-called Broadview Six arrested last year during a protest outside an immigration detention center. The feds had already dropped a felony charge of conspiracy to impede a federal agent, leaving only a misdemeanor charge of simple assault of a federal officer.
Days before the trial was to begin, as The New York Times reported, the judge called in the prosecutor, U.S. Attorney Andrew Boutros, to call him to task:
The blunders shocked the judge, April M. Perry, who recounted from the bench on Thursday how prosecutors had spoken to grand jurors outside the grand jury room — a major breach of protocol — and had improperly coached them that the evidence they had presented was particularly strong.
The prosecutors also stacked the deck in their own favor by removing from the panel some grand jurors who had voted against them when considering an earlier version of the charges. Making matters even worse, they tried to hide these maneuvers by redacting the grand jury transcripts — that is, until Judge Perry ordered them to give her the full copies.
The situation was even worse in Wyoming, where a panel of three federal judges tossed nine indictments from U.S. Attorney Darin Smith, who had never held a prosecutorial role before his appointment last August. As their ruling noted, Smith told grand jurors before presenting any evidence that the people he was charging were all “‘bad guys,’ ‘murderers,’ ‘bad people’ and ‘not run of the mill criminals seen in state court” — but only one of the defendants was indicted for murder. During a break, Smith then handed out his business card and, according to his own court filing, “invited the grand jury panel members to reach out to him.”
It’s the kind of basic foolishness that even an attorney in their first year out of law school should know to avoid. But then again, the Justice Department did recently open the door to hiring freshly minted lawyers in response to the dwindling pool of more qualified candidates. According to Bloomberg Law, the department’s Civil Division has even resorted to offering $25,000 signing bonuses for lawyers “investigating youth transgender treatments and litigating the Trump administration’s immigration agenda.” The division, which is responsible for defending the government in court against lawsuits, is also reportedly handing out a “retention incentive allowance” to keep what staffers it still has from jumping ship.
In some ways, the struggle the DOJ is facing is unsurprising — and can still be plenty harmful. When autocracies purge experienced leaders and experts, the vacuum is mostly likely to be filled with mediocrity. New research from German political scientists Adam Scharpf and Christian Glassel examined the motivations for government officials during Argentina’s “Dirty War” in the 1970s and ’80s. Their work illustrates how many of the midlevel figures carrying out the regime’s orders weren’t extremists or victims but instead, as The New York Times’ Amanda Taub framed it, “middling workers trying to get ahead.”
When autocracies purge experienced leaders and experts, the vacuum is mostly likely to be filled with mediocrity.
The embarrassing level of mediocracy on display at the Justice Department feels apt in that context. Few of the lawyers still defending the government’s mass detention program are likely to be as zealous as White House deputy chief of staff Stephen Miller.
Instead, more are most likely akin to Robert Keenan, who is currently acting deputy assistant attorney general in the department’s Civil Rights Division, one of the top roles in a storied office. The Wall Street Journal recently profiled Keenan, describing him as someone “passed over for promotions repeatedly in his 24-year career” and “still handling low-level cases typically reserved for first-year federal prosecutors” before his meteoric rise under Trump. He’s presented as typical of a group that has “been rewarded with more power and responsibility by an administration that increasingly prizes loyalty above legal pedigree.”
It’s troubling that several judges have already told federal lawyers that they have lost the “presumption of regularity,” the assumption that the government is telling the truth in court. It is likewise concerning that grand juries can no longer accept that they are being told the truth when presented with evidence of a crime. While there’s some bit of hope — not to mention schadenfreude — that comes from seeing this Justice Department fall on its face, each failure on its part helps erode faith in the legal system. It will be a long, hard road to rebuilding the trust that the Trump administration has squandered with its reckless, baseless persecutions.
Hayes Brown is a writer and editor for MS NOW. He focuses on policymaking at the federal level, including Congress and the White House.