There was very little that scared me, as a prosecutor.
Don’t get me wrong: I worried plenty. How will I get this brief done by the motions deadline at the end of the week? Is this cooperator going to hold up on the stand? Did we remember to turn over all the prior witness statements in discovery? In fact, this is largely the professional life of the prosecutor. Every day, you run around Whac-A-Moling tasks you’ve been fretting about.
But actual fear – the kind that fills you not just with anxiety but with dread – was quite rare. I wasn’t frightened of the mob, or any of my defendants. I found a few judges (and a smattering of defense lawyers) intimidating, though not scary. I got the butterflies before any jury address, but that was more adrenaline than fear.
Only later in my career, when I had moved off the line and into supervisory ranks, did I find something that truly scared me: hiring new prosecutors. By that point, after I’d been doing the job for over a decade, I fully understood just how much power every individual prosecutor carries – power over individual liberty, over reputation, over careers and families, over lives. Handing that awesome power to somebody else – often a young person with little legal and real-world experience – and hoping they don’t misuse it on my watch: now that’s scary.
I was given that power as a brand new prosecutor with the Southern District of New York in 2004, when I was only 29 years old. It rattles my nerves even now – heck, moreso now – as I look back, almost 20 years later. I was closer then to my current college freshman son’s age than to my current age (and, while he’s a good kid, he’s most definitely not ready to make daily decisions that carry life-altering consequences for others). Later, as Director of the New Jersey Division of Criminal Justice, I’d often hire new prosecutors who were maybe 26 or 27, a year or two out of law school, with only a clerkship or a couple years of practice under their belts. It felt like handing a machine gun to a toddler – giving unimaginable and potentially destructive power to people who didn’t yet have any real sense of how to use it.
Indeed, I was often told as a newbie prosecutor that I needed to be mindful of this power. As Attorney General Robert Jackson said in a famous 1940 speech in the majestic Great Hall of the Justice Department: “The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous…. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.” Jackson detailed how every decision a prosecutor makes – who to investigate, whether to issue a subpoena, who to arrest, what crimes to charge, who gets a plea deal, what sentence to recommend – can destroy a person’s reputation, career, family, finances and, ultimately, freedom and personal liberty. On my first day on the job at the SDNY, I was given a more colloquial version of this speech. The boss said something along the lines of, “We’re giving you the DOJ insignia on everything you do, and you’re going to have grown men begging you for mercy. Now don’t f*** it up.”
This is why Donald Trump’s comments in a recent interview with Univision are so alarming. When asked if he would weaponize DOJ and the FBI against his political opponents if re-elected, Trump responded: “Yeah. If they do this, and they’ve already done it, but if they follow through on this [the pending prosecutions of Trump], yeah, it could certainly happen in reverse. What they’ve done is they’ve released the genie out of the box… They have done something that allows the next party … if I happen to be president and I see somebody who’s doing well and beating me very badly, I say, ‘Go down and indict them.’ They’d be out of business. They’d be out of the election.” I’ll translate through Trump’s garbled syntax: DOJ is prosecuting me now to knock me out of the election, so I’ll do the same to anyone who crosses me after I retake power.
Here’s one way a potential second term would differ from Trump’s first: he would hire and empower only the truest of true believers, folks who would carry out his worst instincts without pushback. Take Bill Barr, for example. I’ve certainly been intensely critical of Barr for his conduct as attorney general. My first book’s title pretty much tells you what I think of the guy: Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department. (Any questions?) But, as dishonest and dangerous as Barr was, he also had certain lines even he wouldn’t cross.
For example, while in office, Trump routinely called publicly for prosecutions of his perceived political enemies: Joe Biden and his family, Hillary Clinton, Barack Obama, James Comey, Andrew McCabe, and more. But Barr took the tack that experienced parents sometimes must take with an unruly toddler: just ignore him and he’ll scream himself out eventually. While Barr repeatedly abused his power as attorney general to rescue Trump cronies from just prosecutions – recall his disgraceful intervention in the Roger Stone, Paul Manafort, and Michael Flynn cases – he never went on the offensive and used his power to take out the people on Trump’s hit list. Similarly, on and around January 6, we saw other grown-ups in positions of power around Trump – some of whom hadn’t otherwise covered themselves in bravery and glory – stand up to him, or refuse to indulge his basest instincts: Pat Cippollone, Jeffrey Rosen, Mike Pence.
The difference is that Trump isn’t going to empower Barr, or anyone like him, next time around. If Trump re-takes the presidency, there’s nothing to stop him from appointing Rudy Giuliani as attorney general, Sidney Powell as FBI director, John Eastman as Solicitor General. Shudder if you will, but what’s to stop him? Don’t think the Senate would ever confirm these rogues (some of all of whom could be convicted felons by then)? You’re probably right. But Trump has a counter-move. As he infamously declared in 2018, responding to criticism about the many temporary, non-confirmed “acting” placeholders in his administration, Trump said, “I like acting. It gives me more flexibility. Do you understand that? I like acting. So we have a few that are acting. We have a great, great Cabinet.” Yes, I do understand that.
I recognize that I’m mostly stating the obvious here: Trump’s remarks are dangerous, unhinged, outrageous, and, yes, scary. I also understand that I’m preaching to the choir, for the most part. But certain issues are so important that they need to be underscored, even if they’re obvious. Every time Trump promises to weaponize the Justice Department, we need to hear him, believe that he’ll do it, and call it out.
It’s scary enough to put the power of prosecution in the hands of a single, lowly, 29-year-old new prosecutor like I once was, and like the ones I later hired. Now imagine bringing the power of the entire Justice Department to bear, to carry out one man’s political vengeance fantasies. Some of what Trump does and says is laughable, and deserving of a shrug-off. Not this. This is too serious to ignore.