Justice News

Deputy Attorney General Rod J. Rosenstein Delivers Remarks at the Lawyers for Civil Justice Membership Meeting
Washington, DC
United States
~
Thursday, May 3, 2018

Remarks as prepared for delivery

Thank you, Jim, for that gracious introduction.  I enjoyed talking with you last week in Chicago. I admire your commitment to the cause of justice.

I am also grateful to Molly Craig, the Chairperson for this program, and to the staff of the Lawyers for Civil Justice. 

Your organization works to promote fairness in the civil justice system because your members rely on the rule of law.

This is a fitting time to discuss the rule of law, because May 1st was Law Day. President Trump issued a Law Day proclamation on Tuesday, as he did one year ago. The President explained that “[o]ur Founders risked their lives, fortunes, and sacred honor in defense of [the] values” of liberty, justice, and equality. They protected those values with a Constitution that established a “government of limited and separated powers that enables the rule of law to prevail over the whims of government officials.”

As President Trump said in his Proclamation, our Constitution vests “the power to create laws in the Congress, the power to execute laws in the President, and the power to interpret laws in an independent judiciary.” The separation of powers is a structural safeguard that divides power horizontally in our federal government.

The President’s proclamation quoted the great Supreme Court Justice Antonin Scalia, who frequently observed that the rule of law is not just about words written on paper. In order to preserve our republic, each branch must take care to fulfill its duties without infringing the rights of the people or the responsibilities of the other branches.

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 and judges bear great responsibility for implementing and explaining those principles. The farther we get from the founding generation, the less we appreciate how much everything depends on people rather than paper.

Abraham Lincoln believed 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 citizens.

“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.”

In Shakespeare’s play about Henry VI, the character Dick the Butcher famously proclaims: “The first thing we do, let’s kill all the lawyers.” 

That remark is often misinterpreted. Dick the Butcher is not a businessman upset about the surfeit of lawyers or the burden of overregulation. He is a villain scheming to take over the government.

Shakespeare’s point is that without lawyers, nobody would need to follow the law.

That would be good for criminals like Dick. But it would be bad for honest people, and it would be very bad for business.

The rule of law is essential to commerce. It allows businesses to enter contracts, make investments and project revenue with some assurance about the future. It establishes a mechanism to resolve disputes, enforce contracts and punish fraud, and it provides a degree of protection from arbitrary government action.

The American Revolution of 1776 was not just a political revolution. It was also an economic revolution. The movement included mercantilists, farmers, shopkeepers, and other ordinary men and women who banded together, essentially to protest excessive regulation.

The colonists were angry about burdensome tax laws.  They were upset about restrictions on their ability to develop the western frontier.  And they were concerned about unfair trade policies. 

Today, President Trump is mindful about the importance of promoting innovation and avoiding unnecessary interference in law-abiding enterprises.  And under the leadership of Attorney General Jeff Sessions, the Department of Justice is doing its part to promote an environment where businesses can thrive.

The Department of Justice is not a business, and its mission differs in key respects.  But many of the issues we confront are familiar to anyone who works in a large corporation. 

We strategize about how to improve efficiency while meeting our constituent’s needs.  We focus on recruiting and retaining the best talent, training our people, and measuring their progress.  We constantly strive to better manage our budget and to do more with less.

One of our most important duties is to protect our brand — to safeguard the integrity of the Department of Justice. We do that by enforcing high standards, defending our people when they are in the right and taking appropriate action when they are not.

And we continually adapt to confront new challenges.

But as we pursue new goals and policies, we are guided by timeless principles. The most significant principle is our duty to promote a justice system founded on the rule of law.

Your organization also helps to advance the rule of law, through its efforts to achieve fairness and consistency in the justice system, and to reduce the costs and burdens of litigation.

You seek to streamline complex rules of procedure.  And you advocate for greater transparency and predictability where existing policies are outdated or inefficient.

At the Department of Justice, our attorneys confront similar challenges. They must identify and apply an array of policies and guidelines, articulated in various memos and manuals.

Memos can be useful in explaining Department of Justice policies and initiatives.  But they bring several drawbacks.

One problem is that it became difficult for prosecutors to keep track of all the memos. So we are working to consolidate existing Department policies into one central manual.

The U.S. Attorneys’ Manual was designed to be a quick and ready reference of internal Department policies and procedures for our 115,000 personnel.  It is also a public resource, which increases the Department’s transparency and accountability. 

The manual does not create a private right of action, nor is it meant to be an exhaustive list of constitutional rights, laws, regulations, or general legal principles.  But it promotes consistency and proportionality in law enforcement, which in turn enhances public confidence in the justice system. 

As part of the effort to consolidate and streamline our policies, I ordered a comprehensive review and update to the manual, for the first time in at least 20 years.

We are reviewing the entire manual, a total of approximately 11,000 pages. We are identifying redundancies, clarifying ambiguities, eliminating surplusage, and incorporating constructive additions.

I hope these efforts will encourage current and future Department leaders to write fewer memos, and instead to put policy changes directly into the manual.

The manual helps us to guide the exercise of prosecutorial discretion. That is important because the rule of law is about applying neutral principles and basing our decisions on the truth.

Defense attorneys understand that concept well. The job may involve representing an unpopular cause. It is not always easy. But it is essential to safeguarding justice.

Consider the Boston massacre, in 1770.  Five colonists died after British soldiers fired on a crowd. A captain and eight soldiers were charged with murder.

Most lawyers were unwilling to represent the suspects, but future President John Adams agreed to do it. Adams was just a humble private attorney at the time. His political position was firmly on the side of the colonists; he agreed that the British troops should have withdrawn instead of firing on the citizens. But Adams felt obligated to defend the rule of law. He said that he had “no hesitation in answering that Council ought to be the very last thing that an accused Person should want [for] in a free Country.”

Adams went on to secure the acquittal of the British captain. He later represented eight other British soldiers involved in the incident. Six soldiers were acquitted, and two were convicted of manslaughter but received only minor punishments.

During his argument for the defense, 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.”

Defending British soldiers who killed American colonists was not a popular cause, and America was a very different place in those days. Adams did not merely face criticism. He confronted a real fear, in his words, of “infamy” or even “death.” In a diary entry about the trial, he wrote as follows:  “In the Evening I expressed to Mrs. Adams all my Apprehensions: That excellent Lady, who has always encouraged me, burst into … Tears, but said she 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, she was very willing to share in all that was to come and place her trust in Providence.”

Adams wrote that the experience “procured me anxiety, and obloquy .... It was, however, one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.”

When the stakes are high, some people are tempted to dispense with the rules and pursue an expedient result. But Adams set America on a different course. He chose to stand for the rule of law, even in challenging times.

All lawyers share an interest in making sure that our legal system respects due process and seeks the truth. An adversarial system does not require opposing lawyers to be enemies. 

As a prosecutor, I always appreciated a strong advocate for the defense.  A good defense attorney forces prosecutors to make better arguments, marshal stronger evidence, and refine their reasoning.

The Book of Proverbs says that as iron sharpens iron, so one person sharpens another. Respectful debate can help us clarify our understanding, reveal facts, and achieve a just result.

Speaking of just results, I want to discuss a few of the common legal risks facing companies and corporate counsel.

American corporations are on the cutting-edge in many areas of science, technology, research, and development.

That makes them a target for hostile individuals, organizations, and governments. They attempt to profit from American ingenuity by infiltrating our computer systems, stealing our intellectual property, and evading our export controls.

Two weeks ago, the U.S. Attorney’s Office here in the District of Columbia announced a guilty plea that follows this pattern. A foreign defendant and 17 co‑conspirators allegedly targeted mid-sized and large companies in the United States by impersonating executives in email communications with mid-level employees.  The mid-level employees were tricked into believing that a corporate transaction was taking place. They transferred more than $1 million to foreign bank accounts controlled by alleged co-conspirators. 

Similar risks are posed by hackers who gain unlawful access to company computers.  It can take only a few minutes for criminals to steal discoveries that took many years of work and many millions of dollars for entrepreneurs to produce.

That sort of criminal activity is not just harmful to private interests.  It damages our economy, and it threatens our national security.

Law enforcement agencies and prosecutors can achieve deterrence indirectly, after a crime has occurred.  But a company with a robust compliance program can prevent crime or detect it early, reducing the need for law enforcement.

Strong compliance programs are a company’s first line of defense.  Investing in compliance is essential to sustain a healthy marketplace.

Most American corporations are serious about engaging in lawful business practices. They want to do the right thing. They need our support to protect them from criminals who seek unfair advantages and who damage American interests.

Many corporations also choose to work cooperatively with prosecutors and with civil enforcement attorneys in investigations involving their own potential misconduct.  A recent example relates to our efforts to reduce opioid abuse.

Last September, we settled a civil False Claims Act case against a pharmaceutical company that manufactured a fentanyl-based opioid drug. The complaint alleged that the company paid kickbacks to doctors to induce them to prescribe the drug, and the company paid more than $7.5 million to resolve the case. 

The company had cooperated in a related prosecution of two pain doctors running a pill mill operation in Mobile, Alabama.  The doctors were sentenced to 20 years and 21 years, respectively, in federal prison. 

The settlement with the corporation reflected its decision to accept responsibility and help to mitigate the harm.

Things can go wrong in every organization. I can empathize. I reflect every day on the challenges we face with 115,000 employees in the Department of Justice. The actions of any individual employee can affect the reputation of the institution.

When something does go wrong in a corporation, we should give the greatest consideration to companies that adopted serious compliance programs and timely reported the wrongful conduct to law enforcement.

That frees up our agents and prosecutors to focus on people who commit more serious financial crimes or present other threats to the American people. 

When you assist the Department, you help us uphold the rule of law. That is good for America — and it is good for your business.

Finally, before I conclude, I want to take a moment to tell you a true story that melds two of my goals as Deputy Attorney General — to support the exceptional men and women who protect and serve us as law enforcement officers, and to combat the deadly opioid drug epidemic that contributed to a record number of American lives lost to drug overdoses last year.

I mentioned that I met Jim Campbell at an event in Chicago last week.  The Deputy Attorney General is protected by a security detail of Deputy U.S. Marshals.  Two of them were in Chicago a few days early to prepare for my visit. 

One night when they were returning from the hotel gym, they came across a young woman who was unconscious and near death in the hallway. They did not know it at the time, but she had overdosed on the synthetic opioid drug known as fentanyl, a deadly poison from China.

One of the deputies started performing CPR, while the other deputy called for help. They kept the victim alive until an emergency medical team arrived. The team revived the victim with two doses of naloxone. The deputy who performed CPR on that unconscious stranger was checked at the hospital emergency room, and thankfully he received a clean bill of health.

Deputy U.S. Marshals Tony Manson and Chris Carson saved a life that night. They are heroes, but their experience was not unique. Every day throughout America, law enforcement officers put their own lives at risk to protect and serve. 

Please join me in a round of applause for the Deputy U.S. Marshals, and for other current and former members of the law enforcement community who are here tonight.

I am very grateful for the opportunity to spend this evening with you. Thank you very much.

Updated May 3, 2018