Editor’s Note: Elie Honig is a CNN legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” at 5:40 p.m. ET Sundays.
The testimony of Aaron Zelinsky, a deputy to former special counsel Robert Mueller, to the House Judiciary Committee on Wednesday would have been stunning if it wasn’t so obviously part of an ongoing pattern of abuse of power at the Justice Department.
Zelinsky, one of the career prosecutors who charged and tried Roger Stone, confirmed what already was apparent: that Justice Department leadership singled out Stone and afforded him virtually unprecedented favoritism because of his political connection to President Donald Trump. Zelinsky testified, according to a copy of his opening statement, that during his Justice Department career, he has “never seen political influence play any role in prosecutorial decision making. With one exception: United States v. Roger Stone.” I second that. None of this is normal.
Indeed, the Stone case is hardly an outlier. We have seen Attorney General William Barr, throughout his tenure, publicly distort the truth and allow politics to influence prosecutorial decision making on the Mueller investigation, the Ukraine scandal, the Michael Flynn case (see below for more on this), and the recent firing of the US Attorney for the Southern District of New York. The Stone case is no outlier; it is just one sadly predictable part of an ongoing pattern.
This is not a Republican problem or a Democratic problem. This is a Trump problem and a Barr problem. I served under four attorneys general during my time at the Justice Department, from 2004 to 2012 – three Republican appointees and one Democratic – and never saw anything like the politicization that has happened under Barr. Sure, I didn’t always agree with the policy priorities of the attorneys general under whom I served, but it’s entirely appropriate for different parties to have different substantive agendas. But I never doubted that the leadership of the Justice Department was working to keep the department out of politics and to preserve its legitimacy with courts and the American public.
I was trained at the Justice Department that a prosecutor has only two things that matter: independence and credibility. Those twin virtues have guided the Justice Department for generations. But now, sadly, the Justice Department has sacrificed its independence and credibility in the name of politics – specifically, protection of Trump and those around him.
Zelinsky’s testimony reflects a larger conflict occurring within the Justice Department. On one side are Barr and his enablers, who appear to value politics above all else. On the other, stand the thousands of career prosecutors who do their jobs, without fear or favor, every day. And I know who will win: the real prosecutors. Because someday, Barr will be gone, but the real prosecutors will remain. Barr has badly damaged the Justice Department, but it will survive, it will recover, and it will get back to doing equal justice under the law.
Now, your questions:
Jay (Michigan): Is the Court of Appeals ruling dismissing the Michael Flynn case the end of the line, or can Judge Sullivan take further actions?
The ruling by a three-judge DC Circuit Court of Appeals panel ordering the district court to dismiss the Flynn case is the procedural end of the line, or very nearly so. The Court of Appeals could decide to grant “en banc” or full panel review by the entire Court of Appeals, but such review is extraordinary and rarely granted (though this same Court of Appeals currently is conducting such a review in the Don McGahn subpoena case). The case also could be appealed to the Supreme Court, but it is unclear who would have legal ability to file such an appeal, and the court grants review only on a very small percentage of cases presented to it.
It is important to understand what the Flynn decision is and is not. It is primarily a procedural ruling affirming the principle that, generally, it is up to the Executive Branch (through the Justice Department) to decide whether to prosecute or dismiss a case. It does not, however, vindicate Flynn’s conduct or the process by which the Justice Department made the virtually unprecedented decision to dismiss the case.
Fan (Texas): Given that the DACA program was an executive action taken by President Obama (but never passed by Congress), shouldn’t President Trump have the legal authority to reverse it by his own executive action?
This is, in essence, what the President tried to do. The administration’s argument was, essentially, that if one president can make policy by executive action, then the next president has the same power to un-do that executive action.
But last week the Supreme Court rejected the Trump administration’s effort to rescind Obama’s Deferred Action for Childhood Arrivals (DACA) program, which protects from deportation certain undocumented immigrants who came to the United States as children with their parents.
Opponents of the move to end DACA argued successfully that the Trump administration did not follow the proper administrative procedure in its effort to end the program, and that the move to end DACA was “arbitrary and capricious” – not grounded in any reasonable governmental principle, essentially.
The Supreme Court agreed, rejecting the administration’s effort to rescind DACA by a five to four vote, with Chief Justice John Roberts joining the traditional four-justice liberal bloc (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan). The court did, however, leave the door open for the Trump administration to try again, if it can follow proper administrative procedures. So at least an estimated 650,000 “Dreamers” remain protected from deportation – at least for now. The court’s decision leaves open the opportunity for the administration to try again.
Marjorie (New York): Is there any way to change the law so Supreme Court justices and other federal judges do not serve lifetime terms?
Article III of the Constitution establishes that, once nominated and confirmed by the Senate, all federal judges “hold their office during good behavior,” which means they have lifetime appointment (barring resignation or removal by impeachment).
The only way to change this is by amending the Constitution itself – an arduous process requiring votes of two-thirds of both the House and the Senate, plus ratification from three-fourths of all state legislatures. So while a change in the law is always possible, it requires an overwhelming political consensus and will to pass a Constitutional amendment.
Some have suggested that term limits could be imposed by legislation, but it would be an uphill climb to square such a new law with the Constitution’s “during good behavior” language.
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Three questions to watch this week:
- Will the Supreme Court rule, and how will it rule, on the two biggest remaining cases, on a Louisiana abortion law and Trump’s tax returns?
- Will the Court of Appeals grant “en banc” reconsideration of the Flynn decision?
- Will prosecutors seek grand jury indictments for the former officers charged in the deaths of George Floyd and Rayshard Brooks?