Justice News

Deputy Attorney General Rod J. Rosenstein Delivers Remarks at the Ninth Annual Judge Thomas A. Flannery Lecture on the Administration of Justice
Washington, DC
United States
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Wednesday, November 1, 2017

Thank you, Judge [Royce] Lamberth, for that kind introduction. I am very grateful for the invitation to speak to this distinguished group.

 It is a great privilege for me to deliver this Judge Thomas A. Flannery Lecture on the Administration of Justice. 

Judge Flannery’s impressive career serves as an inspiration.  As a World War II veteran, he put his life on the line and fought to defend our nation’s freedom.

Then, for almost forty years, Judge Flannery ably served the people of the District of Columbia as a federal prosecutor and a federal judge. He inspired countless lawyers, many of whom are in this room.

The judge’s 2007 obituary mentions a remark he made about this town. He said, "I'm from the old Washington, when it was … a small, sleepy Southern town."

Judge Flannery observed, "It's much different now." No kidding!

I started my legal career here in 1989, as a law clerk to Judge Douglas Ginsburg.

But I worked in Maryland for 16 of the past 20 years. It is great to be back here in the arena.

I want to read you an excerpt from a newspaper article. The reporter wrote, “Some say Rod Rosenstein’s job is one of the most precarious positions in public service.”

That was written ten years ago, in 2007.

I was the U.S. Attorney for Maryland at the time.

Now I am the 37th Deputy Attorney General. The position was created 67 years ago. The average tenure is 14 months.

When my teenage daughter learned about my impending nomination, 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.

Being U.S. Attorney was a slightly less controversial job.

One of the many wonderful things about serving as U.S. Attorney is that you receive a lot of credit for work you did not personally perform.

If you get some criticism that you also do not deserve, well, it all evens out in the end.

Richard Bach wrote that you should “[l]ive never to be ashamed if anything you do or say is published around the world – even if what is published is not true.”

I have some recent experience with that riddle.

One of my most important duties is to protect our brand – to safeguard the integrity and defend the reputation of the Department of Justice by following the rule of law.

A unique challenge facing the Department is that we have to play by the rules, even if our critics do not. 

That is because Department of Justice attorneys take an oath of office that constrains us to follow the rules.  My oath is codified at Title 5 of the United States Code, Section 3331. I swear to “bear true faith and allegiance to the” Constitution, and to “well and faithfully discharge the duties of the office.”

Tonight, I want to discuss the duty of my office, and of the Department, to defend the rule of law.

Article II of the Constitution states that the President must “take Care that the Laws be faithfully executed.”

The Constitution established a government based on the rule of law, which is the principle that the law must be enforced fairly, and the government must follow neutral principles.

The rule of law is not just about words written on paper. The rule of law depends on 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. 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.

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 that 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?”

The point is that we must defend the rule of law regardless of the impact on our personal interests.

I recently visited Independence Hall, where the founders gathered to write the Constitution during the summer of 1787.

Benjamin Franklin’s house was just a few blocks away. The story is told that when Franklin was walking home after the Constitutional Convention, Elizabeth Powel approached him with a question.

Mrs. Powel asked Franklin what type of government the Founders had created. Franklin replied with these words: “A republic, madam, if you can keep it.”

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

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

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

The word “keep,” in modern English, normally means to hold something in your possession: “Here’s a ten-dollar bill; you keep the change.”

Keeping something, in that sense, is passive.

But that is not the meaning Franklin intended. He used the word “keep” in the same way 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 it is up to politicians to keep our government. But Franklin spoke to an ordinary citizen — a woman who at that time did not even have the right to vote. Yet Franklin said it was up to her, not him, to keep the republic.

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

One of the most important things Department of Justice lawyers do to keep the republic is to enforce the laws wisely and justly. 

The ability to choose which cases to investigate and prosecute is an extraordinary power.

Robert Jackson, one of our nation’s great Attorneys General, observed that “[i]f 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.”

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.”

Prosecutors have broad authority to decide what crimes to investigate, which people to prosecute, and what charges to file.

A judicial ruling by Richard Posner describes our challenge 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.”

We uphold the rule of law 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.

The Department of Justice has guidelines for how to exercise prosecutorial discretion. We call them the Principles of Federal Prosecution, and they were first adopted in 1979 by Attorney General Benjamin Civiletti. The guidelines do not dictate results, but they are useful as a framework.

The premise of the guidelines is that prosecutors should use rational and objective considerations in determining which criminals to prosecute.

The guidelines counsel prosecutors to consider three categories of issues: first, the degree of federal interest in prosecution; second, the likelihood of effective prosecution in another jurisdiction; and third, non-criminal alternatives to prosecution.

The guidelines are helpful because the rule of law calls for 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. 

The Supreme Court proclaimed in Berger v. United States that the prosecutor’s “obligation to govern impartially is as compelling as its obligation to govern at all.”

To say that we enforce the law impartially does not mean we apply it mechanically. It means that we enforce it rationally. Different results should be justified by different facts.  That is not easy work. As one commentator noted, “Prosecutors should fret, sweat, and agonize over justice.”  

The ideal prosecutor is dogged, but not an automaton who proceeds at all costs. Nor is the ideal prosecutor a zealot who demands punishment for every arguable violation of the law.   

The best way to regulate prosecutorial discretion is to require detached, meaningful review of significant cases by experienced career supervisors who demonstrate wisdom, experience, fortitude, and detachment, with oversight by politically accountable officials.

Detachment is critical to making wise decisions.

In 1940, while serving as Attorney General, Jackson told a group of U.S. Attorneys that they must remain “dispassionate, reasonable and just.”

Judge Learned Hand said, “The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own, without bias.”

I would add that the spirit of liberty requires the government to prove a criminal defendant’s guilt so convincingly that it satisfies a jury of twelve citizens, beyond any reasonable doubt.

When we make allegations of wrongdoing, our allegations carry considerable weight in the arena of public opinion. That is why it is important for us not to make public comments about the subjects of our investigations.

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

Sometimes people look at our high conviction rates 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 evidence that complies with the 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 tend to deter most prosecutors from making frivolous allegations.

 Prosecutors who seek the truth must remain open to the possibility that it may not match their preconceptions.

That is why it is important for prosecutors to avoid confirmation bias.  Prosecutors should never reach a conclusion first and then ignore contradictory facts.

Truth is about solid evidence.  It is not about strong opinions. Many people sincerely believe things that are not true.  In the words of an old Philadelphia doctor, “sincerity of belief is not the test of truth.”

So prosecutors bear a duty to remain open-minded. Robert Jackson counseled that the job calls for “fair play and sportsmanship.” He said that a prosecutor should temper zeal with kindness, seek the truth, serve the law rather than factional purposes, and approach the task with humility.

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, but not against others, based on our own biases or other inappropriate or unfair considerations.  We must follow neutral principles.

When President Trump spoke last summer about American values, he said that “[w]e treasure the rule of law and protect the right to free speech and free expression.”

The President’s words about the rule of law are backed by concrete actions. When you appoint principled lawyers like Jeff Sessions, Rachel Brand, Noel Francisco and Chris Wray to leadership positions in the Department of Justice, that demonstrates respect for the rule of law.

Abraham Lincoln spoke about the rule of law in his first published address, in 1838. At age 28, Lincoln was a novice state legislator. He had recently moved from a small pioneer town to the capital city of Springfield, Illinois. Lincoln was alarmed by the rising political passions 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. The mob raided a warehouse, burned a building, and murdered the publisher.  Lincoln was revolted by the shooting.

Lincoln gave his speech a prophetic title: “The Perpetuation of Our Political Institutions.” He spoke passionately about the adverse consequences of rejecting the rule of law. 

Lincoln used two vivid examples.

The first involved the extra-judicial hanging of gamblers in Mississippi. In Lincoln’s words, the gamblers were “worse than useless,” and their execution, as a practical matter, was “never a matter of reasonable regret with any one.”  

But the executed gamblers had not received due process.  By allowing their murder, the government set a snowball rolling down the hill. According to Lincoln, it set off a frenzy of hanging innocent people.

Lincoln’s second example was about a black man in St. Louis who “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 himself had committed a murder and would have been found guilty and executed.

But that wasn’t the point. Lincoln observed that “[w]hen men take it in their heads today, 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 some one 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… probably will, hang or burn some of them by the very same mistake.”  

Seventy years later, at the dawn of the twentieth century, the Supreme Court considered a similar extrajudicial killing. United States v. Shipp is the only criminal case tried in the United States Supreme Court. 

The case began in Chattanooga, Tennessee, in 1906.  A young woman reported she was raped as she was walking home from work at night.  Authorities announced a reward for anyone who could identify the attacker.  The next day, a witness came forward and identified a black man named Ed Johnson as a suspect.  He was immediately arrested and charged with the rape.

After a three-day trial that featured dubious eyewitness identifications, Johnson was convicted and sentenced to death.  Fewer than three weeks transpired from the rape to the sentencing. 

Mr. Johnson filed a habeas corpus petition. He alleged a violation of his constitutional rights, including the deprivation of his life without the due process of law.  Johnson argued that his trial attorneys had been precluded from filing pretrial motions, that African Americans had been excluded from the jury, and that his trial was tainted by the fear of mob violence. 

A federal judge denied the petition and ordered Johnson remanded back into the custody of Hamilton County. 

 Johnson’s attorneys filed an appeal to the United States Supreme Court. 

Justice John Marshall Harlan granted the appeal.  The Supreme Court stayed the proceedings to allow the federal appeal to proceed.

The Supreme Court ordered the Sheriff of Hamilton County, John Shipp, to maintain custody of Johnson.

But the Sheriff allowed a mob to break into the jail and take  Johnson to a bridge across the Tennessee River.  They hanged him, and shot him dozens of times.

Johnson’s final words were: “God bless you all. I am innocent.” 

The Department of Justice was outraged by the affront to the rule of law. Attorney General William Moody sent agents to Chattanooga to investigate the murder.  Then he took the unprecedented step of charging Shipp and others with criminal contempt of the Supreme Court. 

The Supreme Court accepted original jurisdiction over the matter. Thus, on October 15, 1906, Shipp and his co-defendants became the only defendants in American history to come before the Supreme Court and enter pleas of “not guilty.”

The defendants argued that the Supreme Court was a party and could not preside over the trial. Justice Oliver Wendell Holmes answered, “The court is not a party. There is nothing that affects the judges in their own persons. Their concern is only that the law should be obeyed and enforced, and their interest is no other than that they present in every case.” 

The Court appointed a special master to take testimony and admit evidence. Then the Supreme Court convened for closing arguments. The new Attorney General, Charles Bonaparte, delivered the government’s closing arguments. 

Bonaparte argued that “never in its history has an order of this court been disobeyed with such impunity. Justice is at an end when orders of the highest and most powerful court in the land are set at naught. Obedience to its mandates [is] essential to our institutions.” 

The Supreme Court convicted Sheriff Shipp and several of his co-defendants.  Chief Justice Melville Fuller wrote that “if the life of anyone in the custody of the law is at the mercy of a mob, the administration of justice becomes a mockery.”

One of the most important aspects of my job is to make sure that prosecutors serving in the Department of Justice follow our policies and practices concerning the administration of justice.

The immediate staff of the Deputy Attorney General includes about 25 attorneys, and two of them are charged with enforcing the rules that require our lawyers to act with the highest integrity and professionalism.

In addition, Attorney General Sessions has made it a top priority to recommend prosecutors of the highest caliber to serve as United States Attorneys. 

The President recently appointed a superb lawyer to head the U.S. Attorney’s office in Washington, D.C. Jessie Liu will do an outstanding job representing the Department of Justice in this district. I know that you will be impressed with her professionalism. 

Jessie, thank you for taking on that important job.

I am proud to work for Attorney General Sessions and with so many dedicated professionals in the Department of Justice.  We understand our weighty responsibility. 

By enforcing the laws with integrity, modesty, impartiality and self-restraint, we honor the rule of law, and we preserve it for future generations. 

And by doing that, we ensure the administration of justice in a manner that pays tribute to Judge Thomas Flannery, and the many other patriots who helped build the proud legacy of the United States Department of Justice.

Thank you very much.

 

Updated November 6, 2017