Trump-Fueled Attacks Test Prosecutors Pursuing Elected Officials

Federal prosecutors in Washington are juggling a number of corruption cases against elected officials during a campaign season marked by singularly aggressive criticism of prosecutors and the rule of law.

House Republicans have been relentless in their accusations that the Justice Department has been “weaponized.” Their presumptive presidential nominee, Donald Trump, repeatedly disparages Special Counsel Jack Smith, whose two criminal prosecutions of Trump and an unrelated New York felony conviction are all getting linked by his supporters to vilify career prosecutors’ motives.

Less noticed is how this climate influences an office Smith used to lead, the Public Integrity Section, as it operates ahead of the November election and beyond. The group for decades has overseen the most sensitive political corruption matters and this year is leading prosecutions or investigations of Rep. Henry Cuellar (D-Texas), expelled Rep. George Santos (R-NY), and Texas Attorney General Ken Paxton (R), among others.

“It does create challenges for prosecutors who are having to impanel a jury and convince regular citizens of the guilt of an elected official,” said Howard Master, a partner at investigations firm Nardello & Co., who used to prosecute public corruption in Manhattan. “Those attacks on the integrity of the system may have more success than they might have in the past.”

Trump took to Truth Social to cast Cuellar’s foreign bribery indictment as a Biden-motivated response to the lawmaker’s tough immigration enforcement stance.

Paxton, appearing on former Trump adviser Steve Bannon’s podcast last month, called for the next president to appoint an attorney general who’ll eliminate corruption at the FBI—an organization he and Bannon likened to the Gestapo. Though he hasn’t been charged, the public integrity office took over a federal bribery investigation of Paxton last year.

Trump has said he would consider Paxton for US attorney general, if re-elected.

Through a DOJ spokesman, the Public Integrity Section declined to comment. At a House hearing June 4, Attorney General Merrick Garland addressed the latest narrative of DOJ doing President Biden’s bidding by forcefully defending the integrity of its prosecutions.

“These repeated attacks on the Justice Department are unprecedented and unfounded,” Garland said.

Established Strategies

Lawyers who used to work at the Public Integrity Section or who are familiar with how it operates said the unit is prepared to handle the pressure.

The former supervisors and line prosecutors point to its established strategies for weathering public outcry, especially during election years, as it manages sensitive investigations involving targets such as executive branch officials, members of Congress, and judges. Those include rigorous trial preparation, adopting an apolitical mindset, and recruiting lawyers skilled at tuning out criticism.

Except now, the talk about weaponization of the Justice Department comes as defense lawyers are seen as more primed to accuse prosecutors of misconduct.

They now pounce on prosecutors’ integrity “right out of the box, before the indictment has even been issued,” said Eric Gibson, a Post & Schell partner who prosecuted federal lawmakers as a public integrity trial attorney.

Trump’s campaign promise to exact revenge on political foes by ordering DOJ to indict them could affect how it approaches ongoing investigations that haven’t yet been made public this year.

“I don’t necessarily know if prosecutors are going to say, ‘OK, depending on the election results, we’ve got to hurry up and change our pace,” said Kamil Shields, who handled public corruption cases as an assistant US attorney in Washington. “I do think though that given public statements about the politicization of the department and the sense that the department has gotten increasingly politicized, I think it’s going to be part of your calculus as you’re writing your prosecution memo.”

Cuellar, Santos

The public integrity team, comprised of some 30 attorneys residing within the DOJ Criminal Division’s DC headquarters, indicted Cuellar in May, while preparing for a September trial against Santos, although Santos’ attorneys said in December they’re negotiating a plea deal.

The office also is facing new inquiries into its decision to decline charging Rep. Matt Gaetz (R-Fla.) with sex trafficking.

The case against Cuellar, a centrist, and the ongoing trial of Sen. Bob Menendez of New Jersey, which was brought by federal prosecutors in Manhattan, both involve longtime Democrats. But the unit still may feel the effects of the Trump-fueled rhetoric.

“It’s not the same nature of partisanship, but inevitably whenever you prosecute someone who is a political figure, I think your own political bonafides are getting questioned,” said Shields, who’s now a partner at Sullivan & Cromwell. “You’re not only thinking about how do I prosecute this defendant, but how do I deal with the rhetoric that juries are hearing. The jury pools can be very attuned to these issues.”

Prosecutors must also contend with a growing body of Supreme Court decisions restricting the reach of corruption statutes. Justices signaled during oral arguments in April that they’re likely to further hamper prosecutors by overturning an Indiana mayor’s conviction in a decision expected any day.

What’s more, several of the department’s top public corruption prosecutors are on full-time detail as members of Smith’s office prosecuting Trump.

A further distraction: the deputy attorney general last year armed the section with new authority for vetting investigations of congressional members from US attorneys’ offices nationwide to ensure they’re uniform.

‘Two Strikes’

The office’s line attorneys are used to operating under difficult conditions, said former section leaders.

“They’re often parachuting into someone else’s backyard and viewed as an outsider by the judge and jury,” said Justin Shur, a former public integrity supervisor who’s now a partner at MoloLamken. “It’s like having two strikes against you before you even show up.”

The office’s prosecutors commonly travel across the country to lead probes into politicians in districts where the local US attorney’s office recuses because of real or perceived ethics entanglements with the target.

Other times, the office winds up in turf battles with assistant US attorneys that end up getting resolved by the department’s No. 2 leader, said Justin Weitz, a former trial attorney in the section.

Public Integrity “often fights for these cases and has to fight for these cases in the first place,” said Weitz, now a partner at Morgan Lewis. “So from the very beginning of these cases,” the section is “in the thick of it.”

Senior department officials end up demanding constant briefings from the prosecutors due to the sensitivity of investigating a sitting federal lawmaker.

And when the line attorneys feel they’re ready to pursue charges, they first come before a panel of supervisors and fellow prosecutors who scrutinize their evidence in an effort to uncover every possible case weakness.

“Often the whole section will weigh in on charges, theories, jury addresses even. It’s very collaborative,” said Luke Cass, a Womble Bond Dickinson partner who served as a senior trial attorney at the office.

Still, the Public Integrity Section often faces second guessing from Capitol Hill, senior DOJ appointees, and law enforcement agents regardless of whether its attorneys pursue charges against politicians facing reelection.

“Everybody, I mean everybody, will criticize you,” said Barak Cohen, a former public integrity attorney who’s now a partner at Perkins Coie.

It doesn’t help that even 15 years later, the office is still remembered in many circles for its worst moment: When its conviction of Sen. Ted Stevens (R-Alaska) collapsed due to suppressed exculpatory evidence.

The office has since successfully won convictions of lawmakers ranging from Rep. Chaka Fattah (D-Pa.) to Rep. Steve Stockman (R-Texas), while its 2012 case against former senator and Democratic vice presidential nominee John Edwards of North Carolina ended with a hung jury.

The attention those cases generate still weighs on the section, even as it works to block out the noise, Cohen said.

“In my time, we were very sensitive to it” and “we realized there was lots to prove,” he added. “There were accusations that the section was gun shy, there was criticism that the section doesn’t know how to try cases in front of juries. People are very aware of the importance of doing their best.”