Interview transcript:

 

Terry Gerton I want to talk about a letter that was released on December 9. Over 100 former DOJ civil rights attorneys and staff really released an extraordinary warning about the destruction of the Department of Justice’s Civil Rights Division. What prompted that letter, and why now?

Paul Kiesel What prompted the letter was that there have been, over the last now 11 months, close to 5,000 career Department of Justice attorneys who have either resigned or been removed. And it’s a reflection that these are individuals that are non-political, they’re non-partisan, they’re there to serve justice for our American system, and they have been under assault. And so this is just consistent with that same approach of taking down members of the justice system that don’t seem to agree with the administration’s policies.

Terry Gerton The letter walks through a number of very specific constraints. What does this tell you about the state of the organization right now?

Paul Kiesel They’re expressing their frustration that in trying to do the job that they were hired to do and many of them — like Liz Oyer, who was the pardon lawyer — left Big Law and became a federal public defender. Then ultimately, when she resisted providing a gun permit to someone who’d been convicted of domestic violence, was fired for doing her job. And that’s really what it’s all about.

Terry Gerton Is this something new, or is this an escalation of a trend that we’ve been seeing over time?

Paul Kiesel I really think it’s something new. This really is an unprecedented experience where you have members of the Department of Justice who are either being fired or resigning over simple policy rules that are within what they’re supposed to be doing. They’re not outside the box. They’re working within the box that’s been created for them by the Department of Justice, and yet they’re being told to do something else. And their only option is to resign, if not be fired.

Terry Gerton With the loss of 5,000 people, what does that mean for the organizations, for the Department of Justice’s ability to actually carry out its mission?

Paul Kiesel I think probably Todd Blanche’s fireside chat he did some months ago, where he acknowledged that they were losing lots of career Department of Justice attorneys and saying that, quote, we are at war — his words, “we’re at war” — and we need young lawyers who are prepared to lose a lot, but fight. And I think the problem is we’re losing institutional history. We’re losing career prosecutors who were there for the right reasons. And so this is going to take years, if not well over a decade, to ultimately hopefully rebuild what was there in the first place.

Terry Gerton The letter focuses on the Civil Rights Division, but it also talks about a broader pattern of politicizing the Department of Justice. What does that really look like in practice? How do you see that playing out?

Paul Kiesel In practice, I think what’s happening is that people are being told that what they need to do in order to follow the dictates of the Trump administration is X, Y and Z. And in order to be loyal to the president of the United States, they need to engage in certain acts that are politicizing by suggesting that they are Trump’s attorney. There’ve been a number of federal judges who’ve not ruled favorably to the administration, and the president has not been shy about blaming someone that he quote-unquote appointed and is no longer being loyal to the president. And look, when you take the oath to be a Department of Justice attorney or a judge, you take an oath to the Constitution, not to the President of the United States.

Terry Gerton I’m speaking with Paul Kiesel. He’s the founder of Kiesel Law and of Speak Up for Justice. Speaking of becoming political, we’ve also seen the resignation of acting U.S. Attorney Alina Haba after the court ruled her appointment unconstitutional. So how does that play out into the bigger picture of the pressure on the Department of Justice and the judiciary that you just mentioned?

Paul Kiesel Alina Haba is a perfect example of where they attempted to bypass congressional approval. So the president can appoint a temporary U.S. attorney in a particular jurisdiction. In this case, it was New Jersey. So Alina Haba was appointed the acting U. S. attorney in New Jersey. Well, the Senate never acted to confirm her appointment; in other words, her appointment no longer becomes valid “unless”. And the “unless” is there’s an escape valve: If the judges of the district in which the U.S. attorney overseeing vote to approve and maintain that U.S. attorney, then in fact, the U.S. attorney remains in place. Well, the judges, the federal district judges in New Jersey, I believe it’s in Essex County in Newark, New Jersey, voted not to maintain Alina Haba as their U.S. attorney, which would essentially mean she’s out. She’s no longer acting. She has got to be removed from that position. Rather than accept the decision of the fact that the Senate didn’t approve and that the judges did not vote for, they challenged the non-appointment of Alina Haba as the U.S. attorney to the Third Circuit. And ultimately the Third Circuit said, no, no good, you cannot be the U.S. attorney. And ultimately she packed up her bags and left. But that is just symptomatic of not following the rules that have been laid out constitutionally for the appointment and the confirmation of the U.S. attorney. That’s happened in a number of different jurisdictions around the country, in fact even California, Los Angeles, has the same problem with its U.S. attorney as happened with Alina Haba. So it’s an ongoing story.

Terry Gerton So when the concerns raised by this letter about the Civil Rights Division specifically and about the Department of Justice more broadly actually come into play, how does it affect everyday Americans? Where do they see it? Where do they feel it?

Paul Kiesel They feel it where you’ve got indictment of James Comey and the indictment Letitia James, where the U.S. attorney wouldn’t act to indict, but ultimately a non-criminal lawyer was appointed by the president to assume the role of the U.S. attorney, Lindsey Halligan. And ultimately bypassing the rules, she got an indictment. A grand jury arguably indicted the two of them. And that’s what plays out. All of us, as Americans, are at risk. If we’re not following the rules that are in place, every American’s safety, every American’s security is at risk. When you begin to politicize the judiciary, you lose the guardrails that the framers of the Constitution put in place in the first instance. And those guardrails are not just being removed with a crowbar, they’re being run over by a tank.

Terry Gerton The Speak Up for Justice Forum that you head had a bipartisan panel last month of former U.S. attorneys that tackled some of these issues. What did you hear in that panel?

Paul Kiesel I heard concern, a broad concern of very respected, very well-regarded lawyers, expressing the concerns they have about where our country is going. When you’re politicizing the Department of Justice, when you’re removing the guardrails of our democracy, there’s real fear. Now, having said that, I’ll say that Gov. Christie, when I said, are you worried about American democracy when these things are happening? And he pushed back, and he said, no, I’m not worried. This obviously is not a good situation, but our democracy is flexible. Our democracy has survived other challenges in the past, whether it was Leo McCarthy or the Civil Rights Movement of the ’60s. We’ve survived those times. And he was optimistic, which makes me more comfortable knowing that optimism exists. Because I don’t want to be fear-mongering, but I want the country to realize the risks we have as a nation when we begin to engage in these sorts of activities.

Terry Gerton In that spirit of optimism then, what do you think needs to happen inside the Department of Justice and perhaps beyond to restore trust and protect civil rights enforcement?

Paul Kiesel I’m going to say in some ways it’s up to Congress and up to the courts. We need to push back on the administration’s consistent attempts to broaden the margins of what the president of the United States is actually permitted to do. Whether it is going into a sovereign nation — none of us who are aware what’s going on in Venezuela were comfortable with President Maduro. Hugo Chavez took down the justice system. A program we did several months ago had federal judge Javi Saldivia, who fled Venezuela under fear of imprisonment or assassination because of what was happening to the judicial system in Venezuela. So when you have our president bypassing Congress and simply going down to a sovereign nation and kidnapping or doing a rendition of a leader of another country, those are the kinds of guardrails that are built in that should not be happening in this country today. And we as a people need to react to it quickly, because the consequences can be dire and they can happen very fast.

Terry Gerton Does your spirit of optimism extend to congressional action on this matter then?

Paul Kiesel Well, it does. I mean, look, when you have Marjorie Taylor Greene, who had been a staunch ally of President Trump, who was kind of vicious in the way she approached members of Congress and members of the judiciary, when she’s called Marjorie Traitor Greene and she decides not to run again, her whole attitude has shifted. And so I’m hoping that other members, elected members who remain in Congress realize that we’re at risk, nationally and internationally and losing our democracy, they’ll push back. And maybe what’s just happened to Maduro will be that process because he bypasses Congress. And the Senate, I don’t know where that trigger, where that circuit breaker gets tripped, but I’m hopeful. If there’s members of Congress listening to this conversation, now is the time. We don’t have any more time to waste to demonstrate the three-tripartite measures of government that we have in this country. The legislative branch, the executive branch and the judicial branch need to act to protect our country.

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