Deputy Attorney General Rosenstein Delivers Remarks to the Palm Beach Forum Club About the Rule of Law

Remarks as prepared for delivery.

Thank you for that gracious introduction. And thank you to the members of the Forum Club for inviting me to join you in Palm Beach today.

It was snowing when I left Maryland yesterday. When I arrived in Florida, someone apologized for the unseasonably cold weather. I did not notice that it was cold!

Yesterday, I hosted a forum about human trafficking at your U.S. Attorney’s Office. Human trafficking is a very serious issue. The local newspaper printed a story about it. The headline reads: “Rosenstein visits Miami … and does not talk about Russia.”

They will be able to write the same headline today in Palm Beach.

When my teenage daughter first learned about my nomination to be the Deputy Attorney General, she asked whether my picture would be in the newspaper.

I said, “No.”

I told her, “Deputy Attorney General is a low-profile job.  Nobody knows the Deputy Attorney General.”

Those were the days.

I am very happy to be here, for several reasons.

For one thing, I always appreciate the opportunity to spend a few hours away from our nation’s capital. DC is great place to visit, but working there is no day at the beach.

President Harry Truman said that if you want a friend in Washington, you should get a dog. I am very lucky. I already have a dog.

I have seen stories speculating that I may be sued, fired, or held in contempt. And that was just the last 24 hours.

My father called me and asked, “Are you OK?” And I said, “Yes, I had a great day today.” Then he said, “Really?”

My parents grew up in a time when “the news” happened twice a day: once in the morning newspaper, and once in the evening network television broadcast. There were only a few suppliers of “news.” Most people accepted “the news” as gospel truth. And usually it was true.

In those days, facts were different than opinions. Newspapers and television networks labeled their opinions as “editorials” and made efforts to distinguish them from news. It was not a perfect system. The line between fact and opinion was blurry sometimes, but there was a line.

Yesterday really was a great day for me. It was a great day because I spent it working with exceptional public servants at the United States Department of Justice and our state and local partners who work every day to keep Florida safe. We spent the day helping to protect our nation and promote the rule of law.

And I am proud to work for a President and an Attorney General who support our efforts to achieve those goals.

I am also proud to work with your state Attorney General, Pam Bondi, who is a strong advocate for the rule of law.

Today, I want to speak about the importance of the rule of law and how the American constitutional structure promotes it. 

Our Constitution establishes a government based on the principle that the law must be enforced fairly, and applied evenly to all persons. 

But the rule of law is not just about words.  Even the most eloquent written rules require interpretation. 

Because decisions need to be made, the rule of law depends on the character of the people who enforce it.

If the people charged with enforcing the law uphold it faithfully, the result will be a high degree of consistency and predictability.  The stability provided by the rule of law is one of the primary reasons that our nation has thrived. 

When you follow the rule of law, it does not mean that you will always be happy about the outcome.  To the contrary, you know for sure that you are following the rule of law when you are not always happy with the outcome.

The rule of law permits the public to hold people accountable for violating rules set in place by elected officials.  It also protects people from arbitrary punishments and ensures that government officials follow fair processes before depriving anyone of their liberty. 

One of the finest defenses of the rule of law appears in Robert Bolt’s brilliant play about Sir Thomas More, A Man for All Seasons.  In the play, More defends the rule of law in an argument with his son-in-law, William Roper.

Roper is angry because More would allow the Devil to benefit from the protection provided by the rule of law.

Roper insists that he would cut down every law, if necessary, in order to destroy the Devil.

More replies, “Oh?  And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat?”

More concludes, “I’d give the Devil the benefit of law, for my own safety’s sake.”

More’s point is that we need to defend the rule of law even when it is not to our advantage, so it will be there for us when we need it.

German theologian Martin Niemoller made a similar point. Neimoller failed to defend the rule of law, and later regretted it. He explained that “when they came for me … there was no one [else] left to speak [up].”

The founders of our nation understood the importance of the rule of law. That is why the President and all other officers are required to take an oath to “preserve, protect, and defend the Constitution of the United States.”

President Abraham Lincoln spoke about the oath of office in his first inaugural address. By the time Lincoln was inaugurated in 1861, slave states had already started to secede from the Union. Lincoln explained in his address that after swearing an oath to defend the government, he could never accept its destruction.

Lincoln’s primary concern was about geography: the unity of the American states.

But Lincoln also talked about another type of unity. He spoke about the unity of the American people.

Lincoln’s words resonate today. Partisan differences are exacerbated by the media. Opposing parties are at war, figuratively. But in Lincoln’s time, people were literally at war. The differences of opinion then were deeper than any of ours today.

Nonetheless, Lincoln insisted that his opponents not be treated as enemies, because they were all Americans.

Lincoln said that “[w]e are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection.”

Lincoln invoked the “mystic chords of memory” that tie us together, and he concluded his speech by appealing to “the better angels of our nature.”

A shared commitment to the rule of law is a bond that ties Americans together.

In 1951, 90 years after Lincoln’s address, Judge Learned Hand said that “[i]f we are to keep our democracy, there must be one commandment.  Thou shalt not ration justice.”

At the Department of Justice, our 115,000 employees work tirelessly to “faithfully discharge” the duties of their offices. 

Priorities change, but the principles of the Department of Justice are timeless. We will defend those principles, and we will pass them on to future generations.

One of the most important things we do is to enforce the laws wisely and justly.  Faithful execution of the laws requires discretion and sound judgment.

Robert Jackson was one of our nation’s great Attorneys General. In 1940, he gave a classic speech about the role of the prosecutor.  Jackson said that a prosecutor should play fair and follow the rules. That is not surprising.

But Jackson also explained that prosecutors should temper zeal with kindness, serve the law rather than partisan interests, and approach the task with humility. 

At the Department of Justice, we must always pursue justice.  And justice must be based on truth.

Truth is about credible evidence, not strong opinions. Many people sincerely believe things that are not true. In the words of a 19th century Philadelphia doctor, “sincerity of belief is not the test of truth.”

That is why it is important to avoid confirmation bias. People who seek the truth must remain open to the possibility that it may not match their preconceptions. Fair-minded investigators must never reach a conclusion first and then ignore contradictory facts.

President John Adams famously observed that “[f]acts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.” 

Pursuing truth means always yielding to facts, even if they run contrary to our expectations. 

One of that ways we protect the truth-seeking process in our legal system is that the investigators and prosecutors do not get to decide which facts are true.

Allegations made by a prosecutor are presumed not to be true in court. So when we make an allegation, we must be prepared to prove it.

Sometimes people look at the high criminal conviction rates in federal courts and mistakenly assume that the job is easy. But the opposite is true. Conviction rates are high because federal prosecutors exercise great care before they allege wrongdoing.

We need to introduce documents that satisfy strict rules governing the admissibility of evidence. Our witnesses must be credible under cross-examination. We need to rebut any exculpatory defense evidence. And we must prove our case to the unanimous satisfaction of 12 random citizens. Consider how difficult it is to get 12 random citizens to agree about anything!

If the defendant persuades just one juror, the presumption of innocence carries the day.

Those requirements deter most prosecutors from making frivolous allegations.

In the play I mentioned earlier, there is a humorous scene that illustrates the need for solid evidence.

Thomas More and his family are discussing whether More should prosecute a man they do not like.

More’s wife says, “Arrest him!”
More replies, “For what?”
More’s daughter explains: “Father, that man is bad!”
And More responds, “There’s no law against that.”

More goes on to explain that as a judicial officer, he must be concerned about what is “legal” and not what is “right.”

What is right is a subjective matter of personal opinion. What is legal is an objective issue of fact and law.

There are two baseline objective requirements for a criminal prosecution. First, the alleged conduct must unambiguously violate the law. And second, the evidence must unambiguously prove the alleged conduct.

I refer to those as baseline requirements because in American law enforcement, we do not prosecute every violation of the law. We make a subjective determination whether the violation warrants prosecution in light of all the relevant facts and circumstances.

Discretion is inherent in law enforcement. To quote Judge Richard Posner, “The Department of Justice wields enormous power over people’s lives, much of it beyond judicial or political review. With power comes responsibility, moral if not legal, for its prudent and restrained exercise; and responsibility implies knowledge, experience and sound judgment, not just good faith.” 

The point is made more concisely in a remark attributed to French Enlightenment philosopher Voltaire: “With great power comes great responsibility.”

If that quote sounds familiar, it was also said by another legendary person – Spiderman’s Uncle Ben.

My point about our solemn responsibility is that the Department of Justice does not measure success solely by whether we acted with the right motive. Government officials who exercise discretion have a special obligation to make the right choice, based on articulable reasons.

That requires experience, good judgment, and wisdom.

One of the longstanding principles of the Department of Justice is that we try not to make public comments about anything that is not already in the public record.

There are many reasons for that policy. One is that it may interfere with our investigations if people learn details about them. Another is that it may be unfair to people who are not charged with crimes. Because when we make allegations of wrongdoing, our allegations carry considerable weight in the arena of public opinion.

Lots of people are allowed to talk to reporters about federal investigations. Witnesses are allowed to talk to reporters. Suspects are allowed to talk to reporters. Private lawyers are allowed to talk to reporters. And all of those people have friends and relatives who are allowed to talk to reporters.

One of the consequences is that the people who talk to reporters usually do not know all of the relevant facts, so the stories frequently are wrong in either stark or subtle ways. The mistakes sometimes reveal that the source probably was not one of the officials conducting the investigation.

Let me turn next to one of the most important structural protections established by the Constitution. In theory, there is a division of labor in the federal government. Each of the three branches plays a vital role in upholding the rule of law. The legislative branch’s role is to enact laws. The executive branch implements laws. And the judicial branch interprets laws.

But the framers did not want any branch to be entirely independent. The system includes checks and balances. Each branch is subject to some degree of influence or control by other branches.  The framers believed that the interdependence of the branches was essential to preserve the liberty that they literally fought to establish.

The most challenging thing about our system of checks and balances is that the lines between the branches are not self-enforcing. Each branch has the power to overstep its bounds and interfere with the others. There is no umpire who sits above the three branches to resolve disputes.

The system therefore requires good faith and humility, because each branch sometimes needs to defer the authority of the other branches and accept a decision it does not like. Conflicts arise when there is a disagreement about which branch should be humble in a particular circumstance.

Humility requires acquiescence, not endorsement. When I speak of respecting the separation of powers and demonstrating institutional humility, I do not mean to suggest that it is wrong to criticize. There are certain ethical restrictions on judges and lawyers, but members of the executive and legislative branches are free to critique policy choices of the other branches.

Principled differences of opinion help to challenge assumptions and promote better decisions that are based on full information, and expressions of disagreement keep everyone honest.

When the President and members of Congress are unhappy with policy choices of another branch, they are free to express their disagreement. But judges are not supposed to do that. Because judges are not politically accountable – they do not need to stand for election – judges are bound by ethical restrictions.

A judge who dislikes the Trump Administration’s policies about vetting foreign visitors or funding sanctuary cities, for example, is still supposed to uphold the policy if it is legal, without expressing any opinion about whether or not the judge believes it is a good policy. 

That is challenging for some judges, because many people presume that the judge must agree with the substantive result, when in fact the judge generally is not supposed to focus on the outcome.

Supreme Court Chief Justice John Roberts explained that it is best to regard the judge as an umpire. A good umpire does not care which side wins. And as long as the umpire makes the right process decisions in calling balls and strikes, people do not hold the umpire responsible for who wins or loses.

But in litigation, there is no score keeping. The judge has the duty to declare which side wins, so it is sometimes difficult to distinguish the process from the substantive outcome.

Judges are supposed to respect the President’s policy choices, as long as the choice is consistent with constitutional and statutory law.

Under Attorney General Sessions’s leadership, the executive branch respects the other branches of government and avoids encroaching upon their functions.

For example, General Sessions recently announced that the Department will no longer take actions that “have the effect of adopting new regulatory requirements or amending the law.” 

Congress has given executive agencies the ability to issue regulations, or make rules in a certain subject area, but only if agencies do so through a congressionally approved process.  Our policy change arose from Associate Attorney General Rachel Brand’s efforts to pursue regulatory reform. 

Jesse Panuccio, a Floridian who is here today, has been working closely with General Brand on regulatory reform. 

From now on, our Department will not usurp Congress’s job of making the rules. We will stick to enforcing them. 

Another example of our commitment not to encroach upon Congress’s role is the termination of third-party settlement practices. 

Our Department often negotiates settlements with companies that are accused of wrongdoing. The money should go to victims who were harmed by the wrongful conduct. If any money remains beyond what is needed to reimburse victims, the remainder should go to the American government. 

Attorney General Sessions ordered our Department to stop supplanting Congress’s power of the purse by using the threat of prosecution to appropriate money from private defendants and divert it to favored special interest groups.  It is Congress’s job to decide how to spend the government’s money. 

Those policy changes implement the rule of law. 

I do not have time to discuss every one of the Department’s priorities, but let me use the few remaining minutes to talk about violent crime and illegal drugs.

The violent crime rate in America declined steadily for about twenty years.  Unfortunately, in 2014 the decline came to an abrupt halt. Over the next two years, America suffered a stark increase in violence.  In 2015 and 2016, the violent crime rate jumped by about seven percent.  Murders skyrocketed by more than 20 percent over the same period.

When violent crime is out of control and people are afraid to leave home, a community is not governed by the rule of law.

Drug overdose deaths also surged in recent years. In 1990, there were about 8,000 overdose deaths.  Last year, an estimated 64,000 Americans died of drug overdoses. Drug overdose is now the leading cause of death for Americans under the age of 50.

Those statistics are facts, not opinions. President Trump responded to those heartbreaking facts by directing the Department of Justice to support state and local law enforcement agencies and work with them to restore public safety to all communities.

Eighty-five percent of our nation’s law enforcement officers are state, local, or tribal police. The Attorney General recognizes the need to support our partners in our fight against crime.  He directed the Department to conduct a review to ensure that we fully and effectively promote a positive relationship with our law enforcement partners. 

We also provided more than $207 million in grants to support state, local, and tribal law enforcement and violent crime reduction efforts across the country.

The Department of Justice also reinvigorated Project Safe Neighborhoods by improving and updating the original program that was first launched in 2001.  It is a nationwide strategy to reduce violent crime by tasking our U.S. Attorneys to work cooperatively with our partners and use all available tools to make our streets safe again.  And we launched the National Public Safety Partnership, which provides extra assistance to places that are experiencing high levels of crime or precipitous increases in violence. 

In addition, we are hiring more federal prosecutors. And thanks to federal hiring grants, more police officers will patrol the streets. 

America is the land of the free in part because it is the home of the brave. One of the highlights of my job is the chance to work with courageous law enforcement officers throughout the country.

I am looking forward to your questions, so let me conclude now as President Lincoln did in his first inaugural address, with the hope and the prayer that nonpartisan forums like this one will help us all to remember our shared “bonds of affection,” and always be guided by “the better angels of our nature.”

Thank you very much.