In prior toasts that I’ve given, I’ve talked about the defense function and the importance of an independent judiciary but today I’d like to talk about federal prosecutors.
The Department of Justice resides in the executive branch. The Constitutional basis for the prosecutorial function is the “take care” clause of Article II, Section 3 that says the President must take care that the laws be faithfully executed. The laws to be executed come, of course, from the legislative branch. Thus, under the Constitution, the Department of Justice wields the delegated power of the President to enforce Congress’s laws.
Following Watergate, policies were put in place to limit contact between DOJ and the executive and legislative branches. The purpose of those policies was to insulate DOJ from political pressure and influence. Even today, on the Department’s “About” page on its website, under “Our Values” it lists as the first of its core values: “Independence and Impartiality.” About those principles, it says “We work each day to earn the public’s trust by following the facts and the law wherever they may lead, without prejudice or improper influence.”
The independence of the Department of Justice from politicians in the executive branch and the legislative branch isn’t codified anywhere. It’s just a norm. It’s a norm that until fairly recently was so baked into our modern legal landscape that we all took it for granted. And let’s be honest, as American lawyers, we all secretly looked down on countries where enemies of the powerful were prosecuted as retribution and friends of the powerful avoided prosecution in return for favors and flattery.
We’ve all told ourselves that those things could never happen here, because of our norms, yes, but also because our federal prosecutors would never let that happen. We count on our federal prosecutors to stand in the breach just like they did during Watergate.
So with that in mind, here’s a rundown of some recent headlines:
January 2025
- Federal prosecutors who worked on the January 6th and Trump criminal investigations are fired.
February 2025
- An Acting US Attorney and 6 other prosecutors are ordered to dismiss charges against New York’s mayor and resign in protest.
- 7 senior federal prosecutors in DC are demoted for having worked on the January 6th cases.
March 2025
- US Pardon Attorney fired for resisting restoring Mel Gibson's gun rights.
- AUSA in LA fired after an online activist posts about comments the AUSA had made about the President prior to joining the department.
- DOJ attorney is fired after he acknowledged the government's error in deporting Kilmar Abrego Garcia in court to the judge presiding over the case.
April 2025
- 3 more AUSAs in the SDNY resign in protest over the dismissal of federal charges against NYC's mayor.
June 2025
- DOJ fires 3 more prosecutors involved in Jan 6 cases
- Acting US Attorney in Sacramento is fired after she reminds the Border Patrol chief about a court order in effect prohibiting indiscriminate stops of people in the district.
July 2025
- 20 prosecutors and support staff who worked on Jack Smith investigations into the President and his allies are fired.
- Jim Comey's daughter, an AUSA in the SDNY is fired.
- AUSA in Miami is fired because of a negative social media post about the President from 8 years ago.
August 2025
US Attorney for WDVA resigns when ordered to initiate an investigation into Biden era officials for mishandling classified information that he believes is unsupported by the evidence.
September 2025
- US Attorney for the EDVA resigns after President announces on social media that he wants him removed due to his unwillingness to bringing charges against Jim Comey that he believed unsupported by the evidence.
- Three senior AUSAs in the EDVA are fired based on internet rumors that they had resisted indicting Comey.
October 2025
- Two more EDVA prosecutors fired for having opposed indicting Comey
These are just a few examples of federal prosecutors who were fired or demoted because of the cases they worked on or their personal political opinions, or who resigned rather than use the power of the Department for retribution or political favor. Some are Republicans and some are Democrats. After all, the independence of the Department of Justice is a value that transcends party. These prosecutors stood in the breach and we owe them a debt of gratitude.
I think it says something about the world in which we are now living that I – a criminal defense lawyer who has never spent even a single day as a prosecutor – have such visceral gratitude for the willingness of federal prosecutors to risk their careers by speaking truth to power that I feel compelled to dedicate this toast to them. So let me say this to the prosecutors among you. We may be adversaries in the courtroom, but we will always be allies in the defense of our Constitution and in support of the rule of law.
To the Constitution.
