By Noah Feldman / Bloomberg Opinion
Here’s the most important yet overlooked fact about seven Justice Department prosecutors who resigned rather than drop charges against New York Mayor Eric Adams: The Trump administration could have avoided the whole debacle with the stroke of a pen.
Had the president simply pardoned Adams the way he pardoned 1,600 Jan. 6 rioters, public corruption prosecutors would have been angry, but the decision, on its own, wouldn’t have violated Justice norms. Since the prosecutors wouldn’t have been implicated in a decision that could have been made without their participation, there would have been no need for them to decide between resigning or following orders that violated their principles.
It matters that Trump didn’t choose the pardon option because dropping the Adams prosecution created real long-term costs for the president and his Justice Department. I’m not talking about Democratic opprobrium or even the damage to department morale; Trump doesn’t care about those things. I’m talking about the message sent by the resignation of some of the most ambitious, intelligent, qualified conservatives in the U.S. government.
Consider who wrote some of the harshest resignation letters accusing Trump’s Justice Department of violating the department’s professional norms. Former acting U.S. Attorney for the Southern District of New York, Danielle Sassoon, is a high-flying Harvard Law School graduate and Federalist Society member who clerked for Justice Antonin Scalia: in short, conservative legal aristocracy in the making, the kind of person ordinarily destined for high office and maybe a judgeship. Hagan Scotten, a decorated special forces combat veteran who finished at the top of his Harvard Law School class and clerked for then-Judge Brett Kavanaugh and Chief Justice John Roberts, was also well on his way to conservative legal greatness.
Their resignations tell the Supreme Court’s conservatives and Federalist Society-approved lower court judges that the Trump administration doesn’t care about protecting the credibility of the Justice Department; or the rule of law. The Trump administration needs conservative justices like Roberts, Kavanaugh and Amy Coney Barrett, who herself clerked for Scalia. Without them, the Trump administration would face regular defeats in court. Those justices know Sassoon and Scotten. They know what kind of principled conservatives they are; those who belong to the same elite group as Roberts, Kavanaugh and Barrett. When the story is written of how Trump lost a Supreme Court to which he appointed three members, the Adams resignations will form a crucial, turning-point chapter.
So why didn’t the Trump administration take the easier path? Two different answers are possible. One is that Trump and his attorney general, Pam Bondi, wanted to force a show of loyalty from Justice Department officials, and they didn’t care about the consequences. The other is that they were just too inexperienced, too unaware of how principled conservatives think, and yes, too stupid to realize that they would cause a rebellion among the best and brightest conservative prosecutors.
Take your pick of the answers: Both augur serious future problems for the department in litigating before the federal courts in the months and years to come. And there will be a lot of litigation because Trump’s team has repeatedly chosen the illegal path over the much easier legal one.
The result is that the federal courts, particularly the conservative Supreme Court, will be tested more seriously than at any time in living memory. If they hold the line and preserve the rule of law, much of what Trump has already done and proposes to do will be reversed.
In his first term, Trump famously outsourced the most critical judicial picks to the Federalist Society. In turn, the Federalist Society promoted numerous qualified, highly conservative candidates in the Sassoon and Scotten molds. They now populate the judiciary. It is they, the principled conservative Trump appointees, who will be tested most personally. They should naturally be role models for the younger Sassoon and Scotten. Instead, Sassoon and Scotten are likely to be role models for them. If the younger versions could torch their promising careers on principle, then sitting judges, with the safety of life tenure, can certainly do their bit by standing up to Trump.
Scotten’s resignation letter highlighted his conservative bona fides. “Some will view the mistake you are committing here in the light of their generally negative views of the new Administration,” he wrote to the deputy attorney general. “I do not share those views.” Scotten did not blame Trump personally, suggesting, “I can even understand how a Chief Executive whose background is in business and politics might see the contemplated dismissal-with-leverage as a good, if distasteful, deal.”
Then Scotten lowered the boom: “Any assistant U.S. attorney would know that our laws and customs do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way.” That’s the principled conservative’s credo of laws and customs, delivered bluntly by an American whose bravery and loyalty to his country are beyond question. If principled judicial conservatives listen, as I hope and trust they will, that credo can save the rule of law.
Noah Feldman is a Bloomberg Opinion columnist.
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