The DOJ Prosecutors Who Think They’re Trump’s Personal Lawyers
This week, more than 100 former federal prosecutors in Illinois sounded the alarm about the current leaders of the office where they all once served. “Regrettably,” their statement reads, “there is little doubt that actions taken by leadership in the last year have tarnished the reputation of the United States Attorney’s Office for the Northern District of Illinois.” They list some serious concerns, including the departure of an “extraordinary” number of experienced prosecutors and the “extraordinary collapse rate” of prosecutions. “When judges increasingly call into question the motivation or candor of prosecutors and agents,” they write, “that is a sure sign that a standard has been compromised.” What they have witnessed merits “serious public scrutiny” because the lawyers who work there “affect not only the quality of justice, but the lives of more than nine million residents” in the district. “We write because an educated public is the only hope against overzealous prosecutions,” they conclude.
The letter is a remarkable statement of what prosecutors fear: that the public may lose trust in the justice system, or that their own career has lost its credibility. But it’s significant less for the set of concerns expressed than the fact that they were expressed at all. Things must be especially bad, in other words, for federal prosecutors to call for the serious scrutiny of the public.
They are that bad and worse. Federal prosecutors hold a lot of power, which is one reason why the Trump administration has leaned so heavily on them to defend its dirty work. While technically U.S. attorneys work for the Department of Justice and not for the president, such distinctions feel quite hollow when the acting attorney general pledges his loyalty and affection to Donald Trump so openly—“Thank you very much, I love you, sir,” Todd Blanche said at a DOJ press briefing in April. No wonder Blanche was officially nominated this week to stay in the job. Before all this, he was best known as the president’s personal attorney. No wonder it seems like DOJ lawyers serve in that role too. Mercifully, some of them are not very good at hiding it.
We know how badly some federal prosecutors are performing for the administration for a few reasons. For one, when they fuck up—misleading a grand jury to get an indictment, say, or ignoring a judge’s orders (including orders to comply with previously ignored orders)—federal judges sometimes let us know. Over the past 18 months, a number of federal prosecutors have engaged in apparent misconduct egregious enough that federal judges have rebuked and moved to discipline them. The cases involved may vary in substance—the parties range from hospitals providing gender-affirming care, congressional candidates, and detained immigrants to anti-ICE protesters—but together they tell a story about injustice, influence, and the limits of using the law against its enforcers. It’s often a frustrating story, in which even the most blistering judicial opinion or the most successful exposure of misconduct cannot undo the damage already done by federal prosecutors. But the record each rebuke leaves could be valuable, illustrating what was done to thwart or slow the damage.
Judges are understandably critical when their own orders have been undermined, sometimes flagrantly, by the federal government. When U.S. District Judge Mary McElroy chastised federal prosecutors in a case demanding private medical records from trans children, she framed their actions not as regrettable errors but as an abuse of power. “The United States Department of Justice (“DOJ”) possesses immense prosecutorial authority and discretion,” the judge began a May 14 order. “As citizens, we trust that federal prosecutors, when wielding this awesome power against a state, a company, or certainly against vulnerable children, will play fair and be honest with its counterparts and the judiciary. DOJ has proven unworthy of this trust at every point in this case.”
This admonition followed federal prosecutors’ attempts to go around McElroy, who had quashed a subpoena for medical records, by getting a federal judge in Texas to issue its own subpoena. Their efforts were just one twist in the Trump administration’s ongoing campaign against gender-affirming care for young trans people. DOJ has been crucial to the administration’s attempts to paint hospitals that provide such care as engaging in fraud and thus worthy of investigation, even as judges swat them down. Such failures are not (or not only) the mark of people who don’t know how to do their job. In her order, Judge McElroy singled out the most senior prosecutor among them, “who sat silently by as his counterpart, a junior attorney who has been practicing law for approximately six months and had no relevant information, was forced to answer questions about DOJ’s blatant disregard for the proper course of negotiations.” Judge McElroy found that prosecutors had “misled” the court and “misrepresented and withheld information,” and last week she referred those prosecutors to the court’s discipline committee. (The Department of Justice had already said the judge’s allegations were “without merit.”)
The administration’s attack on transgender rights is far from the only arena in which federal prosecutors have run afoul of judges when pushing the administration’s goals. Trump’s racist “law and order” campaigns, in which federal troops and agents flooded cities such as Washington and Memphis, have also relied on federal prosecutors willing to bring criminal charges that would typically be the purview of local prosecutors. U.S. Attorney Jeanine Pirro was for a time the face of this campaign, after her office in turn flooded federal courts with sketchy cases in which grand juries refused to return indictments while those charged sat in jail for days. “It’s not fair to say they’re losing credibility. We’re past that now,” said Judge Zia Faruqui, in a hearing on a case that Pirro’s office dismissed after holding a defendant for nearly a week. “We’re acting like this is all normal,” the judge remarked. “What’s to prevent people from just getting rounded up off the streets?”
Where federal prosecutors have really shown their eagerness to follow Trump’s mission has been in his campaign of mass deportation, as well as in the project of criminalizing those who oppose it. Across the country, Justice Department lawyers have helped keep immigrants in detention longer, interfered in lawful efforts to return them, and attempted to paint dissent to mass deportations as terrorism. But these prosecutors have also demonstrated their ability to routinely fail in their part of this mission. Hundreds of judges have ruled in favor of immigrants who filed habeas petitions in order to gain release from immigration detention camps, and dozens of indictments against protesters and observers in cities such as Chicago and Minneapolis have been tossed.
These might be the cases that have most reliably elicited pushback from federal judges. “In immigration-related cases alone, hundreds of federal judges, who were appointed by every president since Ronald Reagan, have issued thousands of orders against the Trump administration,” as Madiba K. Dennie pointed out at Balls and Strikes. “At least 44 of the judges to rule against the administration in mass-detention cases were appointed by Trump himself.” In February, Judge Laura M. Provinzino of the U.S. District Court for the District of Minnesota held a Department of Justice lawyer in contempt, penalizing him with a $500 fine for each day the government failed to return a detained immigrant’s identity documents.
At least one Justice Department attorney, working for the U.S. Attorney’s Office for the District of Minnesota, broke decorum to complain about what such cases were reportedly doing to their well-being. “The system sucks. This job sucks,” said one prosecutor, Julie Le, on an immigration case earlier this year, when U.S. District Judge Jerry Blackwell demanded to know why immigrants he ordered released were still held. “I wish you could hold me in contempt so that I could get 24 hours of sleep.” This was just a few weeks after federal immigration agents shot and killed Renee Good and Alex Pretti in Minneapolis.
It’s rare to get such an unvarnished look at one of these prosecutors. But we will soon get more, in a case that offered some of the most egregious examples of their questionable conduct. Last October, six people were indicted in connection with a demonstration outside an immigrant holding facility in Broadview, near Chicago. Federal prosecutors accused them of conspiracy to impede an immigration operation, after an unmarked federal vehicle slowly drove toward them and others who were part of the demonstration. Transcripts in the (now former) Broadview Six grand jury proceedings began to be released this week, after U.S. District Judge April Perry ruled they could be made public, following the collapse of the government’s case. “I have never seen the types of prosecutorial behavior before a grand jury that I saw in those transcripts,” Perry said last month. In this case, we saw something even more rarely aired in public: the responses of federal grand jurors to the claims of federal prosecutors, and the prosecutors’ attempts to get an indictment even after some jurors refused.
The prosecutors’ alleged misconduct in the case is striking in how unbothered they are by potential consequences. On the record, federal prosecutors appeared to openly violate the grand jury process, seemingly handpicking jurors who sided with the government’s version of events. They improperly spoke to grand jurors outside of court, personally vouched for the strength of their case (something that is expressly forbidden), and convened multiple panels of jurors until one returned the indictment the government wanted. “Are you actually presenting any new actual facts or just a different viewpoint on your side?” asked one unnamed grand juror, not long into the government’s second such attempt. The assistant U.S. attorney, Sheri Mecklenburg, answered: “I’m feeling the skepticism already. Are you going to be able to listen with an open mind?” The juror was direct. “I heard this case like last week and I thought it was a crock of shit then and I still think it is.”
“OK. Thank you for your opinion for everybody,” Mecklenburg said. “Have a good evening.” There was then some cross-talk, and Mecklenberg told the juror, “Excuse yourself.” The grand jury foreperson said, “We have to remember we’re recording, as well.” Mecklenburg apologized and said they’d continue. “And thank you to those of you who are staying with an open mind.”
That exchange happened in October last year. The United States Attorney’s Office for the Northern District of Illinois only dropped the case a few weeks ago, however, once it seemed likely that their conduct before the grand jury would be exposed in court. It was this case that prompted the former federal prosecutors in this office to make their public statement, hoping that the public would be activated. These transcripts show: They already were. Their voices had been silenced, but they are no longer.
