Make No Mistake: This Is One of the Most Serious Developments of Trump’s Second Term

Sign up for the Slatest^[1] to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.

Under Donald Trump, the Department of Justice increasingly seems to be acting as his personal law firm—his deputized goon squad, seeking vengeance^[2] on everyone who ever crossed him, on whatever charges they can cobble together. The institution that once aspired to norms of nonpartisanship and fact is rapidly buckling under the not inconsiderable weight of falsehood^[3] and misrepresentation^[4]. Judges who could once take for granted that the Justice Department worked in the interest of something resembling justice are now openly questioning whether department lawyers are even telling the truth^[5]. On this week’s Amicus^[6] podcast, Dahlia Lithwick spoke to Joyce White Vance, who served as the U.S. attorney in the Northern District of Alabama from August 2009 until January 2017, and whose Substack, Civil Discourse^[7], has charted the many blows to the rule of law for the past several years. Her new book, Giving Up Is Unforgivable^[8], was published last week by Penguin Press.

Dahlia Lithwick:  I really wanted to check in with you about these prosecutions and indictments of former FBI Director James Comey, New York Attorney General Letitia James, and former Trump national security adviser John Bolton. I think you have some granular sense of what has been happening in the Eastern District of Virginia with these cases that many of us may have lost in the fog of war. I’m asking how serious and significant it is that these prosecutions are being brought, who they’re being brought by, and the ways in which the norms of how this has been done historically have been shattered in these cases.^{[9][10][11][12]}

Joyce White Vance: This, in my judgment, is one of the most serious developments that we are seeing. It’s one of the most dangerous developments for democracy, and it’s also one of the most dangerous developments for all of our personal safety. It can be hard to understand that because it’s just a couple of cases, and Jim Comey is, in many corners, not a very popular figure. But that’s not what this is about. Whether or not you like Comey or, as the president says, whether you think he’s a “bad guy”—however you may feel about New York’s Attorney General Letitia James—here’s the problem: Donald Trump obtained indictments against his personal enemies by removing career prosecutors^[13]. He removed career prosecutors that he had put in place in the Eastern District of Virginia, and he replaced them with blatantly unqualified yes-men,^[14] or in this case, a yes-woman, who would do his bidding. On the other hand, you have Comey, the former director of the FBI, the former No. 2 at the Justice Department, with immaculate legal representation^[15] from two of the finest lawyers in the country.

What if Donald Trump decides he doesn’t want to pay a bill to someone to whom he owes money, maybe a contractor on his White House ballroom extravaganza^[16]? There is nothing that stops him from siccing his attack dog on that contractor, or on the editor of a small newspaper in Iowa^[17], or whoever it is that he decides is an enemy. In other words, this is why we have a professional Justice Department that makes decisions based on the facts and the law—one that avoids even the appearance of political interference in prosecutions, because permitting that political interference damages the fabric of our society; it renders us all vulnerable. And yet, this is inexplicably the moment we’re in.

I don’t, by the way, think it’s a hopeless moment. I don’t think the Comey case will go to trial, now that we’ve seen these motions that Pat Fitzgerald has filed^[18]. And by the way, Pat Fitzgerald^[19] is a highly respected, highly regarded former prosecutor who, as far as I can tell, just doesn’t give a flip about politics and is just very interested in justice. So that’s who we have representing Comey. Fitzgerald has filed motions to dismiss based on selective and vindictive prosecution. But for the fact that the president hates Comey, he wouldn’t have been indicted. Those motions happen a lot. They almost never win. This one I think will. I think that the moving papers are very good and they lay out a clear case. And then there’s this super interesting challenge that says that the woman that Trump dropped in to be the U.S. Attorney, Lindsey Halligan^[20], was not properly appointed^[21], that it was done in violation of the Vacancies Act. That motion looks pretty good too. So I think that there’s a good chance that this doesn’t go forward.

Do you think there’s any chance the case against Letitia James holds water, or is it similarly built on a bunch of assumptions and deliberately misconstrued representations that should go away before this goes much further?

Yes. I think that’s exactly what’s happened here, deliberately misconstrued facts to try to come up with a case. We have people who walked away from their jobs as prosecutors rather than indict AG James^[22] because it’s just a bullshit case. I know a good bit about mortgage fraud cases. For a while, I was the DOJ co-chair on the president’s Financial Fraud Enforcement Task Force, the mortgage and other loan fraud subcommittee. So I do know my way around a mortgage fraud case and have handled individual ones, and this is not it.

So much of your book is about what I think of as inchoate or invisible institutions. This is the water you swim in, and yet I think for a lot of people it was an abstraction—until it wasn’t. Our mutual friend and colleague Ryan Goodman was on CBS reporting about what is happening inside the Justice Department and how it has affected judges who are overseeing some of these cases. Erez Reuveni, the whistleblower in the case in which the Justice Department apparently just brazenly lied to Judge James Boasberg about planes that were being sent to CECOT prison this spring—Reuveni spoke brokenheartedly about his career and about what caused him to break with the DOJ.^[24][25][26]

I keep thinking about people like you, Joyce, who worked at the Justice Department for so many years, and how there is no corresponding image to the East Wing being chomped out of the White House by a bulldozer for what’s happened to the DOJ, what’s happening right now at Main Justice, and how devastating it is when federal judges are starting to say, as Ryan Goodman suggested, I just don’t believe anything they say anymore. You are trying, in this book, to express the level of absolute, possibly irretrievable loss. Can you try to give words to this thing that is very abstract to a lot of us, about what happens when we can no longer trust the DOJ, and maybe more urgently, when judges can’t trust the DOJ?^[27][28]

On a personal note, it’s like grieving. It’s grieving the loss of an institution that was so solid that it withstood politics. Ryan Goodman’s utterly immaculate work is about “the presumption of regularity^[33],” which is a legal presumption courts applied that said: We assume, in the absence of evidence to the contrary, that the Justice Department acted in good faith, and that public officials fulfill their official duties. That was so important because, not for nothing, half a dozen times a year a defendant who we, in my office, had indicted would come back and say, “the prosecutors were out to get me, and I want to depose the agents and get the grand jury transcripts.” And so you would go in front of a federal judge and apply the presumption of regularity and say, “This is speculative, this is fictional, there’s no evidence that we behaved in any way wrongly. This prosecutor brought these witnesses in front of the grand jury and the grand jury found probable cause and this defendant will have an opportunity to defend himself and have due process at trial.” And the judges would routinely apply the presumption of regularity. You knew when you went into the courtroom that judges invested trust in you and it was your job to live up to that trust.

James Comey once famously told my class of U.S. attorneys that the public’s confidence—and the court’s confidence—in the DOJ was like a water balloon: It took a long time to fill it up, just a little bit of water at a time, but one pinprick could let that all out. That was why it was so important to marshal our integrity, and the public’s confidence, and to always remember that there was no one case that was more important than the integrity of the Justice Department as a whole.

This administration has blown that, starting with the Southern District of New York, where they ordered a sitting United States attorney to dismiss a corruption case against the mayor of New York City—not because there were problems in the case, but because the Trump administration wanted to cut a deal to get New York to help enforce its immigration policy. That was the first inkling that we were in deep trouble, and that has been sustained with these prosecutions.^[34]

Sign up for Slate’s evening newsletter.