Justice News

Deputy Attorney General Rod J. Rosenstein Delivers Remarks at the 2018 American Bar Association Annual Meeting
Chicago, IL
United States
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Thursday, August 2, 2018

Remarks as prepared for delivery

Thank you for that kind introduction, Hilarie, and congratulations on your successful tenure as president of the American Bar Association. 

The ABA is a diverse organization. Not all of its objectives are universally shared. But lawyers should be united in the goal of “advancing the rule of law throughout the United States and around the world.”

There is a story about two police officers who pull over a car for a traffic stop. One officer walks to the driver’s side while his partner stands behind the car. As the first officer approaches, the driver rolls down the window and leans out, shaking his fist. “Do you know who I am? Do you know who I am!?” The second officer hears the ruckus and calls out, “Is there a problem here?” And the first officer replies, “Yes, it seems that this fellow doesn’t know who he is.”

Lawyers and judges need to know who they are. You are the guardians of the rule of law, a concept that developed over many centuries and today is fundamental to human liberty.

The term “rule of law” describes the government’s obligation to follow neutral principles. The idea dates to the fourth century BC, when Greek philosopher Aristotle wrote that “[i]t is more proper that law should govern than any one of the citizens.”

Retired Supreme Court Justice Anthony Kennedy recently spoke about the moral basis of law. He described it as “a promise of liberty, of freedom, … the right to plan our own destiny.”

The rule of law is indispensable to a thriving and vibrant society.  It shields citizens from government overreach.  It allows businesses to invest with confidence.  It gives innovators protection for their discoveries.  It keeps people safe from dangerous criminals.  And it allows us to resolve differences peacefully through reason and logic.

The rule of law requires us to reserve judgment until we have heard from all parties and completed a fair process. You cannot reach reliable factual conclusions unless you first weigh the credible evidence. You cannot offer reasoned legal opinions unless you consider conflicting arguments.

When you follow the rule of law, it does not always yield the outcome that you would choose as a policy matter. In fact, one indicator that you are following the rule of law is when you respect a result although you do not agree with it. You respect it because it is dictated by the facts and the law.

In 1535, the King of England executed Sir Thomas More, history’s greatest martyr for the law. In Robert Bolt’s brilliant play, “A Man for All Seasons,” More defends the rule of law in an argument with his son-in-law, William Roper.

Roper is angry because More says that he would allow the Devil to benefit from legal protections.

Roper insists that he would ignore every law, if necessary, 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.”

The point is that honorable lawyers defend the rule of law, even when it is difficult, so it will be there when we need it.

As Judge Brett Kavanaugh said last month, “an independent judiciary is the crown jewel of our constitutional republic.” The founders created an independent judicial branch to resist partisan influence and make unbiased decisions. But the rule of law is not merely about vesting ultimate power in judges.  It is essentially about restricting anyone from exercising arbitrary power. Judges may achieve that, but only if they faithfully enforce neutral principles and avoid usurping legislative and executive power.

The goal is to be governed by law – by a system of clear rules and neutral processes – not by the whim of any person.

Justice Anthony Kennedy explained it this way: in a rule of law system, when you apply to a government clerk for a permit and you satisfy the objective criteria, you are not asking the clerk to do you a favor. You are entitled to the permit, and it is the clerk’s duty to give it to you.

The concept of a government bound by law to serve the people is far from universal. I visited the nation of Armenia in 1994, when it was emerging from seven decades of Soviet domination. I gave a lecture about public corruption laws.  When I finished, a student raised his hand.  He asked, “If you can’t pay bribes in America, how do you get electricity?”

That pragmatic question illustrated how the young man learned to think about his society. Corruption undermines law. It stifles innovation, creates inefficiency, and inculcates distrust.

Our Constitution was designed to protect the rule of law.

After the Constitutional Convention, a woman named Elizabeth Powel asked Benjamin Franklin what type of government the Founders had created. Franklin replied with these words: “A republic, if you can keep it.”

Mrs. Powel’s question demonstrates that it was not inevitable that America would be a democratic republic in 1787.

Franklin’s answer reminds us that it was not inevitable that America would remain a democratic republic.

The Constitution comes with a condition: you need to keep it.

Franklin used the word “keep” as an active verb. It means there are things you need to do, if you want to preserve it.

What Franklin had in mind is analogous to the “keeper of the flame,” a person tasked to keep the fire burning. If you are a keeper of the flame, your assignment is not just to watch. You need to take action to keep the spark alive.

Some people think that preserving the Constitution is the job of politicians. But Franklin spoke to an ordinary citizen — a woman who did not even have the right to vote. Yet he said that it was up to her, not him, to keep the republic.

The lesson is that we are all keepers of the republic. The Constitution is not just about words written on paper. It requires people to implement it.

Consider the Boston massacre.  Five colonists died after British soldiers fired on a crowd. A captain and eight soldiers were charged with murder. They faced possible execution.

Most lawyers were unwilling to represent the suspects. But a 35 year old lawyer and future President named John Adams felt “a sense of duty” to accept the task.

Defending British soldiers was a very unpopular cause in 1770. Adams faced a serious risk, in his words, of “infamy,” or even “death.” In a diary entry about the trial, he wrote: “In the Evening I expressed to [Abigail] Adams all my Apprehensions: That excellent Lady … burst into … Tears…. [S]he was very sensible of all the Danger to her and to our Children as well as to me, but she thought I had done as I ought, [and] she was … willing to share in all that was to come ….”

That rhetoric mirrors an earlier letter that Adams wrote to explain his resolve. Adams noted that in theaters “the applause of the audience is of more importance to the actors than their own approbation. But upon the stage of life, while conscience claps, let the world hiss.”

Adams endured harsh criticism in the court of public opinion. But in a court of law, he secured the acquittal of the British captain and six soldiers. Two others were convicted but received only minor punishments.

During his closing argument, Adams famously said 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.”

Those words remind us that people who seek the truth need to avoid confirmation bias and remain open to the possibility that the truth may not match our preconceptions. In the words of a 19th century Philadelphia doctor, “Sincerity of belief is not the test of truth.” Truth is about solid evidence, not strong opinions.

By choosing to defend the law, John Adams incurred “clamour and popular suspicions and prejudices” that he feared would never be forgotten. Years later, Adams wrote that his decision “procured me anxiety, and obloquy …. It was, however, … one of the best pieces of service I ever rendered my country.”

Most of us never face such a dramatic choice.  But upholding the rule of law is not just about litigation in courtrooms. It is also about education in classrooms and living rooms. Every lawyer should accept a personal duty to keep the republic by teaching its principles.

Abraham Lincoln discussed the issue in a speech prophetically titled, “The Perpetuation of Our Political Institutions.”  The year was 1838. Adams and the other founding fathers had passed away, and Lincoln was alarmed by sharp political divisions and rising passions in our young republic. In his first published address, Lincoln advocated building respect for the law as a way to bind the society together.

“Let reverence for the laws,” he implored, “be breathed by every American mother … let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacks — let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice.”

And, Lincoln concluded, “let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions” keep the rule of law.

Two decades later, in 1858, Lincoln engaged in a series of seven lengthy debates with his Senate opponent, Stephen Douglas. The opening speaker addressed the audience for one hour. The other speaker took an hour and a half to reply. Then the first debater spent another half hour to respond.

People disagreed – sometimes vehemently – but they listened patiently, and they learned about opposing arguments.

Consider the three great patriots who set out to explain the Constitution at the founding of our republic. Alexander Hamilton, James Madison, and John Jay wrote 85 profound essays known as the Federalist Papers.

Imagine Hamilton, Madison, and Jay today, trying to convey complex lessons about government and human nature. The structural protections that preserve liberty are difficult to reduce to a soundbite.

But it remains essential for citizens to understand the legal principles that undergird the Constitution. Our system of government is not self-executing. It relies on wisdom and self-restraint. In a democratic republic, liberty is protected by cultural norms as well as by constitutional text.

Lawyers bear a solemn responsibility to defend Constitutional principles, particularly government lawyers.

In his first speech after taking office in 1940, Attorney General Robert Jackson spoke about the special duties of government lawyers. He said that “most … mistakes … [result from] failure to observe the fiduciary principle … the principle of trusteeship, without which our kind of society cannot long endure.”

Jackson is regarded as one of the great Attorneys General, although he served for only 19 months and his tenure was replete with challenges. One of the difficulties Jackson faced was what he called the “unpleasant duty” of responding to congressional inquiries about law enforcement investigations. He explained that “lawyers must at times risk ourselves … to defend our legal processes from discredit, and to maintain a dispassionate, disinterested, and impartial enforcement of the law.”

Jackson observed that lawyers “who sit temporarily in the position of government counsel, are subject to [obligations] … that those outside the profession never” face. He contrasted the special duties of government lawyers with “the volatile values of politics.” Jackson understood that “[f]undamental things in our American way of life depend on the intellectual integrity, courage and straight thinking of … government lawyers.”

Although political tempers flare from time to time, Jackson remained confident that “temporary passion” will eventually yield to “sober second thought” about the rule of law. “We must have the courage to face any temporary criticism,” Jackson urged, because “the moral authority of our legal process” depends on government lawyers acting impartially and respecting the distinction between law and politics.

President George Washington warned in his Farewell Address about the consequences of weakening the separation of powers and allowing one government branch to increase its power by “encroach[ing] upon another.” He said, “[T]hough this … one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” We need to avoid any temptation to compromise important principles and seek a short-term benefit at the cost of long-term values.

The Department of Justice must never be a partisan actor. In all cases, agents and prosecutors are obligated to make neutral decisions, preserve personal privacy, protect national security, and insulate investigations from political interference.

Another renowned Attorney General, Edward Levi, devoted his tenure to building public confidence in law enforcement.  Levi explained that “[n]othing can more weaken the quality of life or more imperil the realization of the goals we all hold dear than … failure to make clear by words and deed that our law is not an instrument of partisan purpose, and it is not to be used in ways which are careless of … higher values ….”

In the Department of Justice, we need to hold people accountable when they violate the rules. We rely on nonpartisan internal watchdogs, including an Office of Professional Responsibility to enforce ethical rules, and an Office of the Inspector General led by a Senate-confirmed presidential appointee, to root out waste, fraud, and abuse, and conduct appropriate criminal investigations.

Most importantly, our actions need to pass muster in courts of law. Agents and prosecutors develop the discipline required by the burden to prove our allegations of wrongdoing beyond any reasonable doubt.  Allegations mean nothing unless they are supported by witnesses who give credible testimony under oath and withstand cross-examination. That gives us a powerful incentive to seek the truth, wherever it may lead.

Before I conclude, I want to share a parable that Attorney General Jackson used to emphasize the role of lawyers in preserving liberty. It is about three stonecutters asked to describe their work. The first stonecutter focuses on how the job benefits him. He says, “I am earning a living.” The second narrowly describes his personal role: “I am cutting stone.” The third man exhibits a different perspective. His face lights up as he explains what the work means to others: “I am helping to build a cathedral.”

Jackson explained that lawyers “do more than earn [a] living[]; we do more than [litigate] [individual] cases. We are building the legal structure that will protect … human liberty” for generations to come. That is a core duty of lawyers. You are always building a legacy, whether you realize it or not. You set an example for your colleagues, you enforce the rules for your clients, and you lay a foundation for your successors. You should never forget about the cathedral.

President Trump selected a superb team of skilled and principled lawyers to lead the Department of Justice and our U.S. Attorney’s Offices. Attorney General Jeff Sessions emphasizes that we do “not represent any narrow interest or any subset of the American people. We represent all of the American people and protect the integrity of our Constitution.”

We are responsible for helping to develop and faithfully implement the President’s law enforcement policies in a manner consistent with longstanding nonpartisan principles. Our decisions do not please all the people all the time, but they always reflect the care, caution, and wisdom required by the law.

That is what the President appointed us to do.  It is what the Senate confirmed us to do.  It is what the oath of office obligates us to do. 

We will keep the faith, defend the Constitution, and promote the rule of law.

 

Updated August 2, 2018