Restoring Confidence in DOJ Requires Accountability, New Leadership

Everyone who has to go to court wants a sympathetic judge. But when a party goes “judge shopping,” it undermines people’s faith in the ability to get a fair hearing. It is bad enough when lawyers try to game the system in civil litigation. It is outrageous when the government does it to get home field advantage in criminal prosecutions, where the goal is to deny someone his/her freedom. Yet, that is exactly what the Department of Justice did recently, and was rightly called out for it.

The DOJ goes judge shopping

Isabella DeLuca was indicted in a case involving the Jan. 6riot. Although a Washington, D.C, resident, she was arrested in California in March and prosecutors sought a warrant to access her cell phone. Since the 2021 events, however, DeLuca had upgraded her phone twice, making it unlikely the new cell phone had anything related to J6 on it. The federal magistrate judge rejected the FBI’s warrant application.

For better or worse, the federal government is rarely denied a search warrant. In those rare cases where a warrant application is rejected, the proper process is to appeal, either to the magistrate making the ruling or to the federal judge presiding over the case. But that isn’t what happened.

Instead, prosecutors took a shortcut to get the warrant for DeLuca’s phone. Agents flew the phone to Washington and sought a new warrant from a D.C. magistrate judge, fully expecting it to be rubber-stamped. Fortunately, Magistrate Judge Michael Harvey smelled something fishy. After reaching out to his counterpart in California to compare notes, Judge Harvey determined that something, indeed, was rotten.

The rot was a blatant example of judge-shopping.

Selective application of the law

Since President Biden was sworn in, we have endured an “ends-justifies-the-means” approach to federal prosecutions. For those deemed enemies of this administration, norms are discarded, rules are violated, and the full force of government is wielded in a manner without mercy or proportionality. Ordinary rules don’t apply if the target of a criminal case is out of favor with the woke mob at DOJ. For them, the ends justify the means.

There is no shortage of examples. Peaceful protesters of abortion receive draconian sentences, while those who threatened a Supreme Court Justice are ignored. A former Trump staffer is arrested and put in leg irons, despite volunteering to surrender to the FBI on misdemeanor charges. Foreign Intelligence Surveillance Act procedures are manipulated to spy on a president in the now-debunked “Russia collusion” prevarication, with no real consequences for those who defrauded the FISA court. Prosecutors obsessed with J6 work to hold defendants without bond, while a man who sprayed a D.C. neighborhood with an AK-47 was sent home. And now, these same prosecutors are caught bending the rules for warrants. So much for blind justice.

Inherent power of the public purse

In our adversarial system of justice, prosecutors and defense attorneys challenge each other on what is supposed to be a level playing field. But with the government’s unlimited money, copious manpower, and other structural advantages, the average person has little chance against Uncle Sam. In 2022, for example, less than 1% of federal defendants charged were acquitted by a jury. The Biden Justice Department doesn’t need to break the rules for even more power.

In the DeLuca case, the D.C. Magistrate Judge rejected the Justice Department’s attempt to cheat, denying the FBI’s warrant (which was uncannily similar to that which was submitted to his California counterpart). That was a good first step.

The real question is whether the government employees who tried to game the system will face any repercussions. We shouldn’t be optimistic. Despite routinely claiming the need to hold regular citizens accountable for their actions, the Justice Department rarely penalizes its own employees who engage in misconduct.

Reforms for the DOJ

If we are to restore the integrity of the DOJ, changes are necessary. Of course, everything starts with new leadership. But that is not enough. Congress must strengthen the DOJ Inspector General (IG) and give him authority to initiate criminal cases. Right now, the IG may recommend prosecutions, but charges are often rejected by Democrat and Republican administrations alike.

A second reform is to place the Department’s Office of Professional Responsibility under the IG. OPR is supposed to hold DOJ lawyers accountable for violating bar rules on ethics. Ask any local bar official, however, and you will hear stories of cases disappearing in a black hole, with OPR citing the Privacy Act for its lack of transparency.

Neary 90 years ago, Justice Robert Jackson warned, “The prosecutor has more control over life, liberty, and reputation than any other person in America. … While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”

Summary

Today, the Justice Department is broken. Only by aggressively – and publicly – investigating claims of misconduct can DOJ begin to restore its integrity. Those who bend the rules should be terminated, without exception. Those who break the law should be prosecuted, just like ordinary citizens. Anything other than zero tolerance gives taxpayers the impression DOJ employees are “Untouchables,” with vast power and little accountability. And in that belief, they would be right.

This article was originally published by RealClearPolitics and made available via RealClearWire.