Statement on Upholding the Rule of Law
At their May 12, 2020 meeting, the ACBA Board of Directors voted to sign and submit the following statement to the members of the House Judiciary Committee.
To the Honorable Chair and Members of the House Judiciary Committee:
We submit this letter to the Judiciary Committee of the United States House of Representatives because of our deep commitment to the rule of law, and to express our grave concern that actions taken by the Department of Justice and the present Administration have undermined our country’s core constitutional commitment to the impartial administration of justice.
Lawyers Allied to Uphold the Rule of Law (LAUROL) is a nationwide, nonpartisan coalition of lawyers, legal scholars, and retired judges, dedicated to ensuring that all persons in the United States receive fair and impartial justice. We have dedicated our professional careers to ensuring the integrity of legal systems and institutions whose administration of justice is critical to maintaining our democracy – and our freedom. LAUROL’s members include Republicans and Democrats, many of whom have received appointments to high state and federal offices by leaders of both parties. We have practiced across the full spectrum of legal fields, on both sides of criminal proceedings, immigration matters, family law disputes, labor and employment issues, federal benefits claims, housing disputes, antitrust laws, complex business disputes, civil rights claims, environmental matters, tax law, and other legal matters that touch the lives of the American people. We have first-hand knowledge of the daily experience of the people who are served in America’s courts. Although we may disagree about case outcomes, we share a commitment to the principles that guide how those outcomes are reached.
The rule of law is not simply an abstract proposition. The Justice Department’s “Justice Manual,” which governs the conduct of all Department of Justice (DOJ) lawyers – including the Attorney General – explains that “the rule of law depends on the evenhanded administration of justice”; that the Department’s legal decisions “must be impartial and insulated from political influence”; and that the Department’s prosecutorial powers, in particular, must be “exercised free from partisan consideration.”
Principled leadership at the Department of Justice is critical to the impartial administration of justice in our nations’ courts. The people depend on the justice system to decide the most important matters in their lives fairly; whether they will lose their home, their job, their child, their property, their liberty, or even their life. But it is not only parties who depend on this. Victims depend on law enforcement to act even-handedly in seeking the truth. Witnesses and whistleblowers stake their lives, careers, and families’ safety on our system’s promise to follow the law and to defend and protect them. Jurors who give up weeks or months of their lives to serve and bear the great responsibility of sitting in judgment of others, put their faith in the justice system to treat all people equally, and not to punish political enemies and reward friends. People’s willingness to serve, to speak up, and to follow the law depends on this faith that those entrusted to administer justice will act without partisan preference or prejudice or politics. Without that confidence, our system of justice would collapse.
We are deeply troubled by the disregard, and in some cases outright scorn, for crucial protections against partisan influence, and the lack of accountability shown by Department of Justice leadership and high-ranking members of the Administration. Recent events at the Department of Justice have led to the resignation or withdrawal from individual matters by respected Department lawyers, and prompted condemnation by more than 2,500 former officials of the Justice Department. A former Department of Justice official in the FBI who participated in the special counsel’s investigation that displeased the President, was subjected to a two-year investigation despite an admitted lack of evidence of any wrongdoing. Federal prosecutors and federal law enforcement agents should not have to worry that they will be undermined, overruled, or sidelined because of partisan demands by the President or other Administration officials.
Administration officials have also used their power to intimidate or harass individual judges and jurors, and to influence the outcome of active cases. Judges who render decisions with which the Administration disagrees are subjected to personal attacks. Administration officials inhibit witness cooperation by threatening to reveal the names of whistleblowers and attempt to influence the outcomes of proceedings by tweeting about the presumed guilt or innocence of individuals in the midst of legal investigations, trials, or sentencing. All of these actions go unchallenged by the Department of Justice leadership.
If anything, the Attorney General has only reinforced this conduct through his silence, and by his own efforts to strip the authority of adjudicators to perform their roles free from improper influence. Recently, for example, the Department issued directives imposing arbitrary completion quotas and adopting politically-motivated hiring mechanisms that undermine the ability of immigration judges to conduct fair and individualized adjudication of proceedings. The Department’s willingness to dispense with critical features of the rule of law was demonstrated most recently by its call – in the midst of the Covid-19 crisis – for authority in emergencies to seek unlimited detention of persons without trial, with no evidence that such powers were needed. That same request included several other measures that would fundamentally compromise vital rule of law protections guaranteed to all of us.
These are but a few examples of Department leadership forsaking their duty to demand impartial, accountable, and transparent legal process on behalf of the people.
The issues at stake in this hearing are vital to every person and to our Republic, and require careful scrutiny by this Committee. We appreciate that at this moment, the nation is gripped with a global pandemic that affects every aspect of American life. But history has shown that the rule of law is most important and most vulnerable during a time of crisis. It is particularly at moments like these that the Attorney General’s failure to defend the rule of law, and his abiding attacks on those who seek to maintain it, threaten us all. We commend the Committee for investigating this matter, and for protecting from retaliation those who uphold their oaths.
Thank you for this hearing and for giving us this opportunity to express the importance of this proceeding to the millions of people the justice system serves and protects.
The Alameda County Bar Association 2020 Board of Directors