Firing Apolitical Federal Prosecutors Over Politics Hurts Us All

Everyone should be appalled at recent moves by the Trump administration to identify and retaliate against federal prosecutors who worked on investigating or prosecuting cases involving the Jan. 6, 2021, attack on the US Capitol.

I’ve spent my career fighting the Department of Justice. My job frequently involves using lawful means to hinder DOJ investigations of my clients and to beat or mitigate any charges that the DOJ brings against them.

The adversarial system of justice is foundational to our legal system. Recent scholarship suggests that this system—in which a professional prosecutor is opposed by a professional defense lawyer in a systemic search for the truth—originates in colonial American courts, not the common law of England. It’s literally the American way. In this system, federal prosecutors are my adversaries.

But an adversarial system requires both sides to be represented. Lawyers shouldn’t impugn the integrity of their adversary based on their clients. Most lawyers don’t do this (although, admittedly, the last decade has seen an erosion of this ethic on both sides). To be a lawyer in the US system is to serve as one part of the whole. The system seizes up and fails if either side isn’t present.

I relish my role as an adversary. But I have nothing but respect for the federal prosecutors I oppose. They are the pride of our legal system. It would be difficult to find a more skilled and excellent collection of attorneys than our roughly 6,000 assistant US attorneys.

We all benefit from their work every single day. They serve on the front lines of justice, and they help maintain an ordered society governed by laws.

The current administration plainly disagrees with most of the Jan. 6-related prosecutions. People can disagree about discretionary decisions, but these were lawful investigations, and the ensuing prosecutions were based on crimes committed—and no one has seriously suggested otherwise. Actions punishing the attorneys involved in those prosecutions are unjust and un-American.

Deciding how to direct the limited investigative and prosecutorial resources of the federal government is an inherently political question. The US attorney general makes calls about what to prioritize and how to allocate resources. Reasonable minds will differ on these questions.

It was therefore unsurprising to see—the day after the inauguration—a memo issued to all federal prosecutors to prioritize cartel, fentanyl, and immigration prosecutions and to reestablish the rule that prosecutors should charge the most serious, readily provable offenses (as opposed to the prior policy instructing prosecutors to make a more individualized assessment in each case).

Some people will applaud these changes while others will decry them. But no one is suggesting that these sorts of policy shifts are improper. These decisions are inherently political; that’s why we have elections.

Federal prosecutors will follow their new orders as they’ve done before. I’ve handled cases in past administrations where I suspected the prosecutor disagreed with DOJ guidance. Never once—often to my consternation—have I seen a federal prosecutor fail to follow orders without fear or favor. Federal prosecutors aren’t political—they’re professionals serving justice by enforcing valid laws.

Any suggestion that career prosecutors who happened to serve during the previous administration might be judged on the basis that they did their jobs is antithetical to the structure of our legal system. These prosecutors enforced valid laws under the lawful guidance of the prior attorney general.

They should no more be judged for that than prosecutors in the next few years should be judged for their role in immigration cases by those who disagree with the priorities of the current administration.

Our legal system works because the people who serve in it understand and are faithful to their roles. I know my role. The federal prosecutors know theirs. It seems some in the incoming administration either don’t understand or don’t care about this part of the system.

Of all the divergent criteria that Americans might list for what made or makes America great, our legal system and the rule of law ought to be on everyone’s list. Our legal system is the envy of the world, and it deserves much credit for the prosperity and security we enjoy as Americans.

It is a privilege and a responsibility to be a member of the legal profession. All of us—prosecutors, defense lawyers, and judges, be they Democrats, Republicans, or independents—must remember that attacking prosecutors for doing their jobs represents a grave danger to the stability and integrity of the entire system.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Gregory M. Gilchrist is a law professor at the University of Toledo College of Law and a former assistant federal public defender.

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