“Our nation’s litigators.”
Those were the words, emblazoned on a recruiting brochure, that first attracted me to a summer internship with the U.S. Department of Justice as a law student in the late 1980s. The president was George H.W. Bush, but that didn’t matter to me. Instead, it was the DOJ mission: to pursue justice on behalf of the people of the United States.
But that vital, apolitical mission seems to be changing. On Monday, the official X account for the U.S. Attorney’s Office for the District of Columbia posted a quotation from Edward R. Martin, Jr., currently serving as the interim head of that office and nominated by President Donald Trump to take on the permanent role. “As President Trumps’ (sic) lawyers, we are proud to fight to protect his leadership as our President and we are vigilant in standing against entities like the AP that refuse to put America first,” the post read.
This language is disturbing on many levels. It appears to reference Trump’s ongoing feud with The Associated Press, which has been banned from the White House press pool for continuing to use the name “Gulf of Mexico” alongside “Gulf of America” in its stories. (In its influential Stylebook, the AP notes: “As a global news agency that disseminates news around the world, the AP must ensure that place names and geography are easily recognizable to all audiences.”) The AP has filed a lawsuit against White House officials alleging violations of its First and Fifth Amendment rights for punishing its journalists without due process for refusing to use certain words.
While DOJ lawyers will be defending the case, attorneys for the government typically speak only through their court filings. In fact, federal regulations and ethics rules restrict such comments. According to the Code of Federal Regulations, DOJ personnel in civil cases “shall not during its investigation or litigation make or participate in making an extrajudicial statement, other than a quotation from or reference to public records... if there is a reasonable likelihood that such dissemination will interfere with a fair trial.” Under these circumstances, prohibited comments are those that relate to “the character... of a party” or an “opinion as to the merits of the claims.”
Similarly, ethics rules prohibit a lawyer from making “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Martin’s comment about “entities like AP that refuse to put America first” would seem to get dangerously close to violating this standard.
But the post is disturbing for another, more fundamental, reason.
But the post is disturbing for another, more fundamental, reason. U.S. attorneys and their assistants are not “President Trump’s lawyers.” According to DOJ’s website, “The United States Attorneys serve as the nation’s principal litigators under the direction of the Attorney General.” U.S. attorneys lead each of the nation’s 93 offices, where assistant U.S. attorneys represent the interests of the federal government in court. Under federal statute, the role of U.S. attorney’s offices is to prosecute criminal offenses, prosecute or defend the United States in civil cases, and file legal proceedings to collect fines, penalties and forfeitures on behalf of the United States.
What you won’t find in official materials about U.S. attorneys and their assistants is any reference to them as “the president’s lawyers.” There is no mission description for federal prosecutors to “fight to protect his leadership as our president,” nor to be “vigilant in standing against entities” “that refuse to put America first.” That is the kind of partisan politics the Department of Justice has fervently avoided since the Watergate era.
Under the Department’s Principles of Federal Prosecution, policies implemented in the late 1970s, prosecutors may never consider partisan politics in making charging decisions. In addition, for the past four decades, U.S. attorneys have been forbidden from communicating with the White House to protect legal decisions “from partisan or other inappropriate influences.” Even the White House counsel represents only the office of the president, not the person who occupies the office in his individual capacity.
A through line of the second Trump administration is the notion that federal employees should “implement the president’s agenda faithfully.” That phrase appeared in a memo from acting Attorney General James McHenry firing prosecutors who worked for the Office of Special Counsel Jack Smith. Similar language was used in a memo from McHenry to Martin at the end of January, directing him to fire prosecutors who worked on cases arising from the Jan. 6, 2021, attack on the U.S. Capitol, and in a memo from acting Deputy Attorney General Emil Bove ordering the acting director of the FBI to terminate FBI supervisors and to collect the names of agents who worked Jan. 6 cases.
The use of the word “faithfully” might also ring a bell. That’s because of the president’s constitutional duty to “take care that the laws be faithfully executed.” But the fidelity the Constitution requires is to the law, not to the president. Moreover, the oath federal employees take upon entering service is “to protect and defend the Constitution,” not to implement the president’s agenda, faithfully or otherwise. While a president may certainly set priorities for government lawyers, Justice Department lawyers are supposed to apply the law without fear or favor to any individual, even the president. When U.S. attorneys or their assistants appear in court, they introduce themselves by stating their name, and then saying that they are appearing “on behalf of the United States,” not on behalf the president.
The language on that 1980s-era brochure may now seem quaint, but it is what inspired me to spend a summer at DOJ in Washington and almost 20 years at the U.S. attorney’s office in Detroit. I served through the administrations of Presidents Bill Clinton, George W. Bush, Barack Obama and Donald Trump, and the work changed barely at all throughout those presidencies. The priorities may have shifted from time to time, but the importance of the independence of the Justice Department endured.
The people who work at U.S. attorney’s offices are not bipartisan, they are nonpartisan, something that political actors seem unable to grasp. Their goal is to seek justice regardless of whether it advances anyone’s political agenda. And they are absolutely not the president’s lawyers. They are our nation’s litigators.
