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Deputy Attorney General Rod J. Rosenstein Delivers Remarks at "A Constitution Day Address" Hosted by the Heritage Foundation


Washington, DC
United States

Remarks as prepared for delivery

Thank you, General Meese, for that kind introduction. It is a remarkable privilege for me to be on this stage with Ed Meese. You are a legend at the Department of Justice. When Ed Meese served as Attorney General under President Reagan, he emphasized one principle above all else: the rule of law.

General Meese famously told the American Bar Association in 1985, “We will pursue our agenda within the context of our written Constitution of limited yet energetic powers. Our guide in every case will be the sanctity of the rule of law and the proper limits of governmental power.”

Those words resonate today. The rule of law is not merely a feature of America. The rule of law is the foundation of America.

A generation after the era of Reagan and Meese, President Trump honors their legacy by nominating judges who “administer justice without respect to persons,” and by appointing Department of Justice officials who promote the rule of law.

Attorney General Jeff Sessions reveres the rule of law. That is why a portrait of Ed Meese enjoys pride of place today in the Attorney General’s conference room. Towering above our meetings, his visage serves as a reminder of the legacy we inherited, an inspiration to carry it forward, and an admonition that the right path is not always the easy path.

On Constitution Day, it is appropriate to keep in mind that although the power of the federal government is vast, it is expressly limited. Those who are entrusted with the exercise of federal authority must be energetic in enforcing the law, but we must restrain ourselves from assuming authority beyond our lawful mandate. Our power is limited by law. And we are obligated to respect the limits – even when no one objects.

Unfortunately, too few American citizens know the details of our Constitution, and some discount the rule of law. If you ask whether a particular legal decision is right, most citizens focus only on whether they favor or disfavor the policy outcome. Even many lawyers instinctively look to the result rather than the reasoning.

Today, I want to discuss the role of the Executive Branch, particularly the Department of Justice, in maintaining and advancing the rule of law.

Article II of our Constitution states that the President must “take Care that the Laws be faithfully executed.” Those few words raised complex questions at the time of the Founding. The questions continue to challenge us today.

Many citizens do not think about our legal system in terms of the words written in the Constitution or the United States Code. Instead, they think about the people and the institutions they encounter in their everyday lives, whether in person, on television or in social media: politicians; police officers; prosecutors; court clerks; defense lawyers; and, of course, judges.

That is a practical reason why the people who run our institutions are so critical to the success of our democracy: they symbolize the democracy.

But there is a deeper reason why the people matter. The rule of law is not just about words on paper. The words mean nothing without people who apply them.

The rule of law depends upon the character of the people who enforce the law. If they uphold it faithfully, the result will be a high degree of consistency and predictability. Those features are among the primary reasons our nation has thrived.

There is an insightful story about a remark made by Benjamin Franklin after he finished deliberating with the Framers in Philadelphia. As the story goes, Franklin was walking home after the Constitutional Convention, when a woman named Mrs. Powell approached him with a question. Mrs. Powell asked Franklin what sort of government the Founders had created. Franklin replied with these words: “A republic, madam, if you can keep it.”

Mrs. Powell’s question illustrates that it was not inevitable that our nation would begin as a democratic republic.

Franklin’s answer reminds us that it is not inevitable that our nation will remain a democratic republic.

Franklin realized that the Constitution comes with a condition: you need to keep it.

When we use the word “keep” in modern English, we normally mean it in the sense of holding something in our possession: “Here’s a twenty dollar bill; keep the change.”

Keeping something, in that sense, is passive.

that is not the meaning Franklin intended. He used the word “keep” in the same sense that someone today might say, “Keep the Sabbath.” It is an active verb. It means there are things you need to do if you want to preserve it.

Some people think that the duty to keep our government falls to politicians. But Franklin spoke to an ordinary person on the street — a woman who at that time did not even have the right to vote. Yet Franklin said it was up to her to keep the republic.

Franklin’s work was done. The words were written … on parchment. The decision whether or not to keep the republic was left to others.

The lesson is that we are all keepers of the republic.

More precisely, each of us has a duty to keep the republic.

One of the most important things that Executive Branch lawyers do to keep the republic is to promote the rule of law.

As Attorney General Sessions said a few days ago: “We inherited from our Founders … an unsurpassed legal heritage, which is the foundation of our freedom, safety, and prosperity.” The Attorney General explained: “[T]he Department of Justice does 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. That is our charge.”

Those words convey a fundamental precept. The Department of Justice does not choose sides because of the identity of a party. We do not enforce the law against some people, and ignore others, based on our own biases or other inappropriate considerations.

We follow neutral principles.

The point of the rule of law is to maintain a fair and rational system characterized by universality — that is, it applies equally to each person. Under the rule of law, the people tasked with enforcing the law must do so impartially.

This is active work. To say that we enforce the law impartially does not mean we enforce it mechanically. It means that we enforce it rationally. Different results should be justified by different facts. And the differences need to be objective.

That brings me back to my earlier point about the people who make up the Department of Justice. The ideal prosecutor is dogged, but not an automaton who proceeds at all costs. Nor is the ideal prosecutor a zealot who demands criminal punishment for every arguable violation of the law.

Robert Jackson, another of our nation’s great Attorneys General, observed: “If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate.”

Driving the point home, Jackson explained that “no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.”

With an ever-growing criminal code, those observations are more accurate today than when Jackson made them in 1940.

Jackson’s point was simple. Violations of the law abound. “What every prosecutor is practically required to do,” he said, “is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.” As Jackson recognized, the prosecutor necessarily chooses which cases to pursue.

The ability to choose which cases to prosecute is an extraordinary power. Courts exercise the ultimate authority to rule on the strength of the evidence and the meaning of the law. But the decision whether or not to prosecute, as the Supreme Court has ruled, is “ill-suited to judicial review.” Such unreviewable power calls for the exercise of judgment, and the wise use of discretion.

When asked, “Why did you prosecute that case?” it will not do for the prosecutor to respond with, “Because I can,” or “Because I must.” The only right answer is, “Because I should.”

The task of enforcing the rule of law is not devoid of discretion. Discretion is inherent in law enforcement.

When used by lawyers, the word “discretion” means freedom of choice – the power to make a decision according to one’s own judgment. When someone decides to act on a matter that is committed to their discretion, the decision is permissible regardless of whether it is wise.

I chose to speak at Heritage today, and not at Brookings or Cato. That choice was within my lawful discretion. I made it in good faith. I hope you regard it as a good choice! But you are free to criticize it. I do not need to prove that it was the best choice.

By definition, discretion means that the rules allow a range of permissible options. So discretion is the power to make a choice that is wrong, in the sense that it is not the objectively best choice.

But when government officials are vested with discretion, they have a special obligation to take care that they do make the objectively best choice.

That requires wisdom.

A Seventh Circuit opinion described the challenge for federal prosecutors with these words: “The Department of Justice wields enormous power over people’s lives, much of it beyond effective 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 ....”

Not just good faith. Of course, good faith is important. It is often essential in order to avoid doing the wrong thing. And good faith is generally a valid defense to a misconduct complaint.

But the Department of Justice does not measure success by whether we acted with the right motive. Our goal is to make the objectively right choice, based on articulable reasons.

The most difficult management challenges for the Department of Justice are prosecutors who act in good faith but make unwise judgments.

Acting with honor is no substitute for acting with wisdom. It is important to have the right motive, but it is even more important to do the right thing.

In our world, that is what it means to “keep” the republic and uphold the rule of law. We uphold it by making wise decisions – usually in the absence of complete information; often in the presence of exigent circumstances; and sometimes in the face of sincere criticism.

I have spoken so far about the prosecutor’s need to act, and the need to act wisely. Let me also take a few minutes to speak about the consequences of not acting.

Attorney General Sessions observed last week, “Enforcing the law saves lives, protects communities and taxpayers, and prevents human suffering. Failure to enforce the laws . . . put[s] our nation at risk of crime, violence, and even terrorism.”

Inaction always comes at a cost, although sometimes the cost is hidden. If government fails to enforce the law, then honorable people may be forced to choose between being cheated and becoming corrupt themselves.

A society that allows crime to flourish may soon lose its commitment to the rule of law. That is why I worry when local governments seemingly abdicate their duty to keep the peace, and instead allow criminals to control their streets. It is why, when I served as United States Attorney, my office stood up to corruption in places where people needed to compromise their principles in order to run their businesses.

Keeping the peace and fighting corruption is hard work. Turning a blind eye and ignoring the consequences is usually easier, and often more lucrative, at least in the short term.

But in the long run, defending the rule of law is the best way to maintain liberty.

It is important to keep in mind that the rule of law is not just about prosecuting people who violate our laws. It is also about protecting people who offend our sensibilities.

We see this play out when government officials are called upon to defend peaceful protestors, even when their cause is repugnant. In recent months, we have watched police officers protect marchers who disparage them, and extremists who reject their values. The professionalism of those courageous officers demonstrates their devotion to the rule of law.

But not everyone shares that commitment. Senator Ben Sasse recently expressed concern about the number of young Americans who think the First Amendment is dangerous, because someone can use freedom of speech to hurt another person’s feelings. “That is actually quite the point of America,” as the senator observed.

We would all do well to remember the words of a novice state legislator in 1838. At age 28, Abraham Lincoln had recently moved from a small, struggling pioneer town to the capital city of Springfield, Illinois. Lincoln was alarmed by the rising political passions and mob violence of that era.

In the nearby town of Alton, Illinois, a pro-slavery mob set out to destroy the printing presses of an abolitionist publisher named Elijah Lovejoy. The mob raided a warehouse, burned a building, and murdered Lovejoy. According to Lincoln’s friend William Herndon, the future president was revolted by the episode.

The murder influenced Lincoln’s first published address. He gave his speech a prophetic title: “The Perpetuation of Our Political Institutions.” Lincoln spoke movingly about rising lawlessness in the land, and the necessity of the rule of law.

Lincoln recognized that adherence to the law is what makes self-government possible. If people reject their responsibility to obey the law, our political institutions may collapse.

Lincoln used two vivid examples to illustrate his point.

The first involved the death by hanging of people Lincoln referred to as “regular gamblers.” These were a “set of men, certainly not following … a very useful, or very honest occupation.” In Lincoln’s words, those gamblers were “worse than useless” and their execution, as an abstract matter, was “never [a] matter of reasonable regret with any one.”

But the executed gamblers received no due process. By turning a blind eye to extrajudicial killing, the government set a snowball rolling down the hill. Next, said Lincoln, came men who were “caught up and hanged in all parts of the State”;then, friends of the earlier suspects; “and finally, strangers from neighboring States … were, in many instances subjected to the same fate.” Thus, according to Lincoln, “went on this process of hanging… till dead men were seen literally dangling from the boughs of trees upon every road side; and in numbers almost sufficient, to rival the native Spanish moss of the country, as a drapery of the forest.”

Lincoln’s second example was similarly vivid. As he described it, a man in St. Louis “was seized in the street, dragged [away], chained to a tree, and actually burned to death; all within a single hour from the time he had been a freeman, attending to his own business, and at peace with the world.” There were suspicions that the victim was himself a criminal who murdered “one of the most worthy and respectable citizens of the city; and had he not died as he did, he [would] have died by the sentence of the law, in a very short time afterwards.”

But that was not the point. Lincoln observed, “When men take it in their heads to-day, to hang gamblers, or burn murderers, they should recollect, that, in the confusion usually attending such transactions, they will be as likely to hang or burn someone who is neither a gambler nor a murderer as one who is; and that, acting upon the example they set, the mob of to-morrow, may, and probably will, hang or burn some of them by the very same mistake.”

It is worth noting that Lincoln’s stories predate by almost a century Martin Niemöller’s better-known quotation that concludes, “[When] they came for me … there was no one left to speak [up].”

Robert Bolt illustrated the same theme somewhat differently in his brilliant play about Sir Thomas More. In Bolt’s version, More defends the rule of law in an argument with his son-in-law, William Roper. Roper is angry that More would give the benefit of the rule of law even to the Devil himself.

Analogizing laws to trees, Roper insists that he would cut down every tree if it were 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?”

The point is that if we permit the rule of law to erode when at first it does not directly harm our personal interests, the erosion may eventually consume us as well. The rule of law is not self-executing. And if it collapses – if the people lose faith in the rule of law – then everyone will suffer.

What was Lincoln’s solution? The Declaration of Independence and the Constitution were his guide stars. Just as the patriots of 1776 and the Founders of 1787 revered the Declaration, the Constitution, and the rule of law, so too should future generations.

“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.

When that ethos prevails throughout the nation, Lincoln said, efforts to subvert liberty will be “fruitless” and “vain.”

Abraham Lincoln understood that the best way to ensure the survival of our “edifice of liberty and equal rights” is to enshrine reverence for the rule of law in the hearts of the people, and not just in the words of the law books.

In that spirit, as we celebrate Constitution Day, I want to thank each of you – especially Ed Meese and the Heritage Foundation – for everything that you do to keep the republic by defending the rule of law.

Let me close with a toast that the generation of 1787 might have uttered to celebrate our founding contract:

To the rule of law at the beginning, to the rule of law today, and to the rule of law for generations to come.

Updated September 14, 2017