Comment: If Gaetz is AG, staff loyal to Constitution must resist

By Barbara McQuade / For Bloomberg Opinion

Please stay.

That’s my message to the 115,000 career employees at the U.S. Department of Justice. As a former DOJ employee, my heart breaks for them with the news of President-elect Donald Trump’s choice of Matt Gaetz to be our nation’s next attorney general.

The ranks of the Justice Department include prosecutors and civil attorneys, federal agents, prison guards, social workers, crime statisticians, legislative liaisons, grant writers and many more career professionals who dedicate themselves to improving the quality of life of the American people. Most have served in Republican and Democratic administrations with little change to their work.

Until now.

The appointment of Gaetz is like brick to the head. Gaetz, who won a fifth term representing his Florida congressional district last week before resigning Wednesday, has shown nothing but disdain for the Department of Justice, the only cabinet agency named for a virtue.

Not only does Gaetz lack the kinds of qualifications one would expect in an attorney general — significant experience practicing law, service as a prosecutor, prior leadership roles at the Department of Justice — he has also been investigated himself by the very same department for child sex trafficking, though no charges were ever filed and he has denied wrongdoing. Gaetz’s only experience as a lawyer was a couple of years in private practice before launching his political career.

Perhaps even worse than his thin resume, Gaetz seems set on abusing the powers of the department in ways that are consistent with the views of his champion. In announcing the nomination, Trump repeated the false characterization of the Biden administration’s “weaponization” of the department, accusing federal prosecutors of political motivation in filing criminal charges against him in cases alleging illegal retention of government documents and election interference. Of course, those cases were investigated by a special counsel, appointed for his independence, and indictments were brought by grand juries, who found evidence amounting to probable cause that crimes had been committed.

Gaetz seems ready to fulfill Trump’s wishes. DOJ norms prohibit prosecution based on politics and forbid communications between the department and the White House about case decisions to avoid even the appearance of impropriety. The purpose of these norms is to prevent the kinds of abuses that occurred during the Nixon administration in the Watergate era by insuring the independence of the Justice Department from political control. The rule of law requires nothing less.

But Gaetz seems prepared to tear all that down. Gaetz has publicly refuted the post-Watergate vision, tweeting in 2020, “The DOJ is part of the Executive Branch. They are not some unelected 4th branch of government, aloof to the administration’s vision and direction.” Last year, during a speech to the Conservative Political Action Conference, Gaetz said, “We either get this government back on our side, or we defund and get rid of, abolish the FBI, the CDC, ATF, DOJ, every last one of them if they do not come to heel.” So much for making prosecutorial decisions without fear or favor.

For a president who has pledged to seek “retribution,” Gaetz appears to be the perfect attack dog. Trump has suggested that he would use the DOJ to go after his political rivals, including President Joe Biden, Vice President Kamala Harris, former Secretary of State Hillary Clinton, former Rep. Liz Cheney, federal and state court prosecutors who have filed cases against him, and others who have publicly opposed him.

Maybe Gaetz’s nomination will fail to stick. Perhaps he won’t make it through the confirmation process, though a recess appointment would allow Trump to bypass the system if the Senate allows it. Gaetz’s immediate resignation from Congress, just as the House Ethics Committee was set to issue a report of an investigation into allegations of child sex trafficking, raised questions about whether this was all a ploy to make the probe disappear. The House lacks jurisdiction to investigate former members.

But if Gaetz becomes our nation’s 87th attorney general, we will need good people at the Justice Department to protect the rest of us. The best check against a chaos agent is non-partisan career professionals with integrity. While federal employees are required to implement a president’s policies, they are also duty-bound to refuse to obey an illegal order. The oath they have sworn was to the Constitution, not to any president.

One fear is that if the non-partisan career employees resign, they will be replaced by Trump loyalists. Gaetz seems eager to install his own puppets, stating in an interview this summer, “You can’t just have the same career people who have grown up in a system that has fallen victim to political capture.”

But standing tall in the face of this threat is necessary to beat it back. In addition to the public servants at the Justice Department, we will need grand jurors, trial jurors and judges to have the courage to stand up to an attorney general who would put the vengeance of a man over the rule of law.

Barbara McQuade is a professor at the University of Michigan Law school, a former U.S. attorney and author of “Attack from Within: How Disinformation Is Sabotaging America.”