Fmr. Federal Prosecutor: “DOJ Is Bleeding Out Its Credibility Very Quickly”

MICHEL MARTIN: Thanks Bianna. Brendan Ballou, thanks so much for talking with us once again.

 

BRENDAN BALLOU: Thank you.

 

MARTIN: So you’re a former federal prosecutor and you’ve been writing a lot and talking a lot about what you see as efforts to politicize major institutions, particularly legal institutions. So, I just wanna start with some recent news. More than 100 attorneys recently left the Department of Justice’s Civil Rights Division after being told the department would now be prioritizing, President Trump’s cultural agenda instead of previous priorities, like, you know, voting rights, policing sort of oversight. You know, it’s, it’s not unusual when an administration changes, priorities change. Right. What is different about this? What is different about this that has caused this mass exodus of career employees?

 

BALLOU: Yeah, so I think that, as you said, you know, administrations change, priorities change, and normally career staff will stick around between administrations, whether they’re Democratic or Republican. I think what’s different here is not just that it’s a more extreme agenda. You know, the new assistant Attorney general for civil rights says that she’s going to go after, you know, so-called DEI policies, anti-Christian bias and things like that. I don’t think it’s just the extremism of the politics, but also what this administration has messaged about the rule of law more generally. The president, the vice president, various members of the cabinet have all made clear that they don’t particularly plan to follow court orders, and in fact, they already aren’t. And so I think if you’re a career staffer, you have to think about do I want to be a part of an administration that doesn’t necessarily respect the rule of law? And if I don’t, how can I be most effective in resisting it? And I think that’s what these resignations were about.

 

MARTIN: Well, what’s interesting also is that the, this is President Trump’s second, second stint in office, not continuous, you know, obviously, but many of these attorneys did serve during the first Trump administration. What is it that they have said or what is it that they have signaled that would cause people for some of whom have served in the government for decades to say that this is the line that I can’t cross. 

 

BALLOU: So I can’t speak to the internal deliberations within the Department of Justice, but let’s focus specifically on the Civil Rights division. You know, what you’ve seen is a dismantling of years of work by career lawyers to try to bring justice to some of the poorest and most disadvantaged people in America. You know, you look at the settlement agreement that they reached with Loudoun County, Alabama that would remediate the fact that historically black neighborhoods didn’t have sewage systems. That settlement was destroyed by the Department of Justice. You look at a case to prohibit discrimination in the Maryland state police force, you know, that was dropped; a case to try to prevent discrimination within the Mississippi State legislature that was dropped. You’re seeing years of work abandoned in a matter of weeks. And so I think for these career folks, it’s obvious not just that this administration doesn’t share their commitment to sort of, the cause of civil rights as traditionally understood, but also doesn’t particularly have a commitment to the institution of the Department of Justice, or like I said, to the rule of law more generally.

And so I think when you’re in that position, you know, if you’re a career civil servant, and I’ve been in this sort of position before, you have to think about where, what can you do to be most effective? Sometimes that’s staying within government and trying to uphold the rule of law within it. And sometimes that’s leaving and leaving as noisily as you can. And I think that’s what these people decided to do.

 

MARTIN: The new assistant attorney general for civil rights, Harmeet Dhillon said about the Exodus and “En mass dozens and now over a hundred attorneys decided that they’d rather not do what their job requires them to do.” I, I, I wasn’t sure how to read that. I mean, in a way I think she might be glad because then presumably they could put people in those positions who will be more amenable their point of view. How, how did you read that?

 

BALLOU: You know, I think that they – at, at some level they may believe that, but at another level, this may be a little bit of a brave face on the part of the administration. You know, the only thing the Department of Justice has, the only thing that any lawyer has is their credibility. It’s the credibility to persuade a judge to rule for you, the credibility, to get a jury to agree with you. And if you destroy your credibility you will not be able to accomplish things legally. And so I think when you see a mass exodus like what we saw, you know, just a few days ago, it suggests that the Department of Justice is bleeding out its credibility very quickly. And so, yes, maybe in the very short term, this is helpful to the new administration. They can try to staff up with folks that are more ideologically aligned with them. But in the long term, I think it’s gonna make it much harder for them to accomplish their agenda.

 

MARTIN: I wanna turn to another issue that you’ve been writing about. You actually wrote a piece for Slate writing about a bid for leadership between two Trump allies, Brad Bondi, who’s the brother of a, of Attorney general, Pam Bondi and Alicia Long, who’s a Trump appointee. They’re running to take over, as you say, the DC bar. Why do you think this is important? It’s not just for some sort of local issue, but do you think this has real importance?

 

BALLOU: Yes, I’m, I’m grateful that you asked, and I think it’s a matter of national importance. So the DC Bar is the Bar Association for nearly 120,000 lawyers in America, lawyers who practice inside and outside of government. And the elections matter really for two reasons. The first is that the leadership of the DC Bar does play a role in the disciplining of those 120,000 attorneys. So it’s, it’s not direct, but the con– the fear is that if Trump allies are able to take over the DC bar they could use that as a way to punish lawyers that are seen as insufficiently loyal to the administration. So that’s one fear. The other fear, and I think it’s much more immediate, is that in any country facing a sort of illiberal movement bar associations historically have been voices defending democracy, defending the justice system, defending the rule of law. You see that happen in countries like Brazil and Spain a few decades ago. And the, the real fear here is that if the Trump allies take over the DC bar the bar will be silenced when the government acts illegally, when the government acts contrary to the Constitution. And that’s one less voice standing up for democracy and for the rule of law.

 

MARTIN: So Brad Bondi was asked about this. He says, “the bar has a nonpartisan mission, which I intend to vigilantly protect against any push to politicize it. My effort to run for DC Bar president began months before the federal elections and has no connection with national politics at all.” And the, you know, the platform for the role is sort of apolitical. I take it that you don’t really buy that.

 

BALLOU: Yeah. There are really two fears here. One fear is that Brad Bondi might be not being truthful about why he’s running, you know, he is the global co-chair of investigations for a major international law firm. He seems to have developed a rather sudden and passionate interest in free certificates of accreditation in the DC bar. I think that doesn’t seem to be the sort of thing that normally interests a high powered white collar attorney. So it’s possible that he’s being disingenuous about why he’s running. It’s also possible that he’s telling the truth, and that’s just as scary. When he says that he wants to make the bar an apolitical organization, you know, what that means is that they don’t want the bar to speak out when the rule of law is under attack. And so again, I think the, the risk here is that a credible institution and institution that a lot of people believe in could be silenced if Trump allies take it over.

 

MARTIN: Do you feel that, for example, there have been some sort of key players who have had their licenses revoked for misconduct like Rudy Giuliani being one example. Is part of your concern that they would kind of have potentially exonerate wrongdoers? Or is it really more that you’re concerned that they would try to keep the bar from organizing itself as an entity to oppose other things going forward? Is that more your concern?

 

BALLOU: That’s the immediate, the latter concern is the immediate problem. The long-term concern is that the DC bar is involved in appointing the members to the board that handle disciplinary proceedings here in dc. And so over the months, over the years, those members would be replaced potentially with Trump loyalists. And so once you do that, then you have an enormous amount of power among over many thousands of lawyers that work in the government. And so it’s a potential you know, where the administration cannot just fire an attorney that’s deemed insufficiently loyal, but allies could potentially disbar that attorney and prevent them from working entirely. And that is really powerful leverage.

 

MARTIN: And, and that could be – how, you think that could actually be seen as professional misconduct, not carrying out the will of the administration? There, one case that comes to mind is the attorney, you know, there’s the case of this Maryland man, who was deported to El Salvador with who – it’s, the administration acknowledged in court that it was an administrative error. He had a le a judicial order saying he was not to be deported to El Salvador, that he had a credible fear of, you know, retaliation or harm if he will return there. Okay. Now, there’s been this furious fight back and forth to get him back from El Salvador because his advocates have said, this is not fair. (17:42) He should be returned. He should never have been deported. The administration has been saying he’s a bad guy, they insist he’s a gang member, even though there’s no, there’s no evidence that’s been presented to that other than some tattoos, which is disputed. 

Well, here’s how we know that this, the administration admits that it was an administrative error. Their attorney said so in court when, when pressed and then this lawyer in court was suspended, or at least he was moved off the case, he was suspended because, and criticized publicly saying he didn’t zealously advocate for the administration’s position. Okay. Is that what you’re worried about? Someone like that who is acting within the scope of what he considers his appropriate professional responsibility telling the truth in court, but it’s not in alignment with the administration’s position, would then be literally disbarred for that?

 

BALLOU: That’s the potential long-term risk. So, you know, all lawyers have a couple of obligations. One is to zealously advocate for their client. But another, every federal government employee takes an independent oath to uphold the constitution and also has an independent duty of candor. And so you can see how some of those obligations can come into conflict with one another. I think that case is exactly right, which is, you know, the leadership of DOJ would’ve liked that lawyer to zealously advocate, presumably, even if it meant eliding or distorting the truth. That lawyer to their enormous credit did not do that. But you can imagine a world in which where Trump loyalists are able to help select members of the disciplinary board potentially would see that as a sign of disloyalty and also is professional misconduct. So that is the long-term risk here.

 

MARTIN: You know, people do run for the leadership of these bar associations on saying that they wanna advocate for things like diversity in the legal profession, right? And so is it reasonable that somebody could also run for the head of the DC bar saying, I don’t think that’s your job. I think we should just stick to our knitting, which is just, I don’t know, whatever they consider the core responsibility and that’s all extra stuff. And that’s, that’s politics. It doesn’t have any place here. 

 

BALLOU: Yeah. No.

 

MARTIN: Is that wrong? 

 

BALLOU: You know, my argument isn’t that Brad Bondi is that it’s inappropriate for him to run for DC Bar President. My argument is that we don’t want Trump, the administration loyalists running the bar. And so it’s entirely legitimate for him to run. It is also entirely legitimate for people to vote against him in the election, which is open until June 4th.

 

MARTIN: So one more issue, Judge Hannah Dugan in Wisconsin – this is another case that’s gotten a lot of attention – she was taken into custody by the FBI on on courthouse grounds for allegedly helping a man evade ICE. Judges have been arrested before for things, but is there anything, anything about the way this was handled that stands out to you?

 

BALLOU: Absolutely. You know, if you look at the criminal complaint here, it seems like this was an arrest made, not with the intention of securing a conviction, but for securing a headline which this administration was enormously successful at. But the legal standard to convict the judge in this case seems far beyond what the facts warrant. And so my suspicion here is that the administration is not necessarily trying to convict this judge. Perhaps they’d like it if they could. But to try to instill a certain amount of fear in judges in a very specific way, which is that ICE agents are going into courthouses to try to detain undocumented immigrants. Presumably judges are gonna be increasingly afraid to stop ICE agents from interfering in court proceedings or from roaming the halls to try to pick up undocumented immigrants because they too are now afraid of being arrested and charged.

 

MARTIN: So there just seemed to be two very different versions of what happened here. The administration seems to be arguing that Judge Dugan escorted this man out or helped him to, you know, evade authorities or somehow helped him get out of a side door or runaway, et cetera. The other version of this is that she was trying to define that kind of the scope of authority. There was, she was in a specific legal proceeding that was unrelated to this, that matter had not been adjudicated, and she felt that he deserved his day in court on that issue and was trying to preserve the integrity of that proceeding. So those are two very different things. Now that the administration has had her arrested saying she actually broke the law, who decides that? Like, how does this get sorted out?

 

BALLOU: Well, now it’s a criminal trial, so it’s gonna be decided by a judge. And if it ever has to go to trial, to a jury, you know, I’ll note that, you know, you, you mentioned in the outset here that judges have been arrested before this administration arrested a judge in the first term. Ultimately that prosecution was dropped and referred to sort of a mere, you know, professional disciplinary proceeding. So their track record in winning in these cases isn’t particularly good. But the damage has already happened. This judge has already been reassigned or taken off for cases. And the message has been made very clear to judges that they are not safe from criminal prosecution in this administration.

 

MARTIN: I do have to ask though, if the facts are as alleged by the administration and any other persons knew that someone else was being pursued by law enforcement and gave them some means of escape, wouldn’t they be prosecuted?

 

BALLOU: Not necessarily. So, you know, I, I haven’t handled immigration prosecution, so I don’t wanna overstate my expertise here, but the primary statute under which she was charged requires corrupt intent, threat of force or other kind of intimidation here, which at least based on the allegations in the government’s own documents, there hasn’t been anything close to that yet. So once again, this seems like a, an arrest built more for headlines than for an actual prosecution.

 

MARTIN: Before we let you go, can you talk about why people should be paying attention to these issues? it just seems all very technical. Can you just give us a sense of why you think it’s important to pay attention to these kinds of very specific issues and these very specific prosecutions and allegations and these kinds of developments?

 

BALLOU: I would tell your viewers to not underestimate your own power here. You know, having been on the inside of government, I can tell you protest, outreach, outrage really matters. It changes how people inside a government think it changes how judges think. And so the more attention that can be brought to attacks on the constitution, attacks on the rule of law it empowers people inside a government to resist unconstitutional or illegal actions. It empowers judges to stand up for what’s right. And so even if you don’t necessarily see the exact consequence of paying attention and speaking out, I can assure you that you are having an effect.

 

MARTIN: Brendan Ballou, thanks so much for talking with us once again.

BALLOU: Thank you.