Lawfare Daily: The Department of Justice, or the Department of Revenge?

[Intro]

Devlin Barrett: Trump two in the Justice Department is absolutely nothing like Trump one was. This is an entirely different set of issues, and even the people experiencing it and dealing with it in real time on day one couldn't grasp, couldn't wrap their minds around what was actually beginning to happen.

Michael Feinberg: It's the Lawfare Podcast. I'm Mike Feinberg, senior editor at Lawfare, and I'm sitting down today with New York Times reporter Devlin Barrett.

Devlin Barrett: This isn't simply a question of, well, whatever the new policy is, we'll just execute the new policy. The Department of Justice is about right and wrong, and you want decisions of right and wrong, decisions of punishment, decisions of guilt and innocence, to be decided by people who aren't making those decisions for political reasons or, or ideological reasons.

Michael Feinberg: Today we are discussing his new book, “The Department of Revenge,” which chronicles a number of changes that have occurred over the past 18 months at the FBI and Department of Justice, which may have changed both organizations permanently.

[Main Podcast]

Now, as I was reading this, there was a question that occurred to me repeatedly, nowhere so much as the end of the work, and I originally planned to ask it to you as we wrapped up this interview.

But the more I thought about it, I think it might be a good place to actually start because it sort of gets at what I think is your overarching thesis. And I'm gonna put you on the spot and ask you a very blunt question, which is, can Americans trust the Justice Department anymore? There have been so many changes that you chronicle, and we'll get into the specifics, but the Justice Department today is not the Justice Department of even 18 months ago.

And if I'm a judge, if I'm a defendant or defense counsel, if I'm a journalist, or if I'm just an American citizen, can I trust what's coming out of the RFK Building, the Hoover Building, and the various offices that support them both throughout the country?

Devlin Barrett: I mean, it's a great question. And, and you're right, it does sort of get to the heart of what so much of the book is about. You know, the, the last chapter is titled Credit and Credibility, and I think the credibility question is, is a huge issue for this department because of the changes in this administration. And, and I, I think the short answer to your question is not as much as they used to, and particularly in some areas.

I think one of the things that's hard sometimes to convey to, to people who, you know, don't live and breathe this stuff, is that the Justice Department and, and the FBI are, are vast organizations that do a lot of different things every day. You know, I think sometimes in the coverage it can start to feel like, oh, well the Justice Department is what, 10, 20 people? It's, it's more than 100,000.

So one of the quotes that really stuck in my head in the course of the reporting for the book was someone who said, you know, "We're all kind of mole people now, and we're just keeping our heads down and hoping that, you know, we don't get tasked with one of these really ugly political unfounded cases. But we know, you know, that that's happened to, to people we know, and we know there's, there's, in some ways there's, there may be no avoiding it if and when that time comes.”

But I think the American people should generally have a, have the understanding that there is still a lot of good work being done at the Justice Department and the FBI, and that can be done at the Justice Department and the FBI. I think where the Trump administration has really squandered a tremendous amount of credibility, like you said, with the courts especially, sometimes with jurors, and, and often with the public, is in cases regarding the people that the president doesn't like or the people the administration doesn't like.

And I think what's really amazing about that basket of cases is you're really talking about sort of two very different collections of people. It's the powerful and the powerless. On the powerless side, you have a lot of protesters who are being charged with things that in, in, you know, like you said, 18 months ago would never have risen to federal criminal charges of anything. And I put this in the basket of, you know, if, if you recall, officials in the administration often say, "If you touch a cop, we're charging you with, with assault." First of all, that's not what the law says. Touching a cop is not assault.

And second of all, the second group of people is the, is the powerful, which means, you know, New York's attorney general, as an example, Letitia James. In a very different context but still I would argue, you know, someone with, with power and voice and influence, James Comey, the former FBI director. So those are the types of cases, those are the types of defendants where I think the Justice Department has done tremendous harm to its own credibility, and where there are legitimate questions when cases get filed.

But I do think there's still a, a large category of work that can be trusted, not that you should ever have blind trust in the Justice Department. I, I, you know, one of the things I have to say is I'm not an institutionalist, right? I'm a reporter. I have always viewed-- I've been covering this organization, this entity, for more than 25 years. I've always viewed it with a, a degree of skepticism and doubt, and I think that's a healthy thing, as long as you keep perspective.

So that's a very long answer, but I think there are many categories in which they have the same rough amount of trust that they used to, but I think there are hugely important categories. If you think about just the, the whole notion that you cannot trust, you may not be able to trust the corruption work of the Justice Department and the FBI- that, that's an awful situation if that's where we have found ourselves.

Michael Feinberg: So I'm gonna wanna get specifically into the corruption work in a moment, but before we do, let's just set the scene for our audience. You describe a series of steps that fundamentally alter the character of the Justice Department as an institution, and also a number of personnel shifts, firings, forced retirements, transfers, and the like, that really change the human capital landscape as well.

But before we delve into that, how would you describe the DOJ and the FBI in just a few sentences as of January 19th, 2025?

Devlin Barrett: Great question. So I would say just before the Trump administration comes back into power, the FBI and the Justice Department are, are weakened. They are, they are in a, in a dangerous place, but they are functional, and they are carrying out the mission more or less in, in keeping with how it's been carried out for decades. You know, Congress is not really defending them anymore. The public certainly has doubts, depending on, on your politics. But they are a functional place with some significant weaknesses and problems, I would say.

Michael Feinberg: Now let me, let me poke at that answer a little bit.

Devlin Barrett: Hit me.

Michael Feinberg: 'Cause it's as you know and many of our listeners know, I'm not entirely an objective bystander in discussing this. I was at the Justice-

Devlin Barrett: Of course

Michael Feinberg: I was at the FBI and the Justice Department.

Devlin Barrett: Of course.

Michael Feinberg: Do you think that the mistrust that was beginning to creep in from both the legislature and from the public was something that was avoidable? Could Christopher Wray and Merrick Garland and Lisa Monaco have made choices that avoided that, or is this just a natural second-order consequence of a sort of hyper-partisan political world?

Devlin Barrett: It's something I have thought about a lot and something I've talked to a lot of Justice Department people about a lot and FBI people a lot. Where I come down on it is, and I think what my reporting shows, is that when you look at the end of the Biden administration, things like the pardon for Hunter Biden, the president's son, things like the, the other, some of the pardons, sort of the protective pardons Biden did as he left office, I think were very harmful to the idea that the Justice Department could still function fairly in, in political cases.

And I think in some ways that was the deepest cut for people like Merrick Garland, who was running the department, people like Lisa Monaco, because it felt like their time ended with a vote of no confidence from their own president, from the person who had been arguing for, you know, the rule of law and for the independence of the, of the Justice Department.

I think there's plenty that could have been done differently that might have helped. I don't, you know, I think of the political pressure on the department as almost being, you know, a rising tide of the ocean. You're not pushing back the ocean. You can, you know, better protect your institution from the water, from the rising water. That is something you can do, and I, I think there were times that they were able to do that reasonably well, and I think frankly there were things that they were not well-equipped to do and did not do particularly well in preparation for what was to come.

Michael Feinberg: Man, there is so much I agree with there and so much I strenuously dissent from.

Devlin Barrett: Hit me. Hit me. I, I-

Michael Feinberg: No, no, no, no. I just, I mean, you know I, I think you are 100% right. They did not, as far as I could see at least, even attempt to shore up any sort of obstacle to being overrun by political actors and ideologues. I, I think a mistake in judgment that is going to be written about decades, if not a century from now, was the belief on everybody's part that the events of January 6th represented the last gasp of a movement that had been defanged as opposed to the start of a particular viral strain of it.

But that said, with respect to the pardons, it's hard for me... I was not remotely a fan of most of Joe Biden's pardons. To get into like FBI esoterica, I thought his statements about Leonard Peltier were just-

Devlin Barrett: Sure.

Michael Feinberg: actually incorrect and not well thought out whatsoever, but it's hard for me to disentangle that from any of the pardons and commutations that Trump executed on at the end of his term, or Marc Rich in the Clinton administration, or George Bush pardoning most of the Iran-Contra malefactors. Like I, I just don't know I guess I'm falling down a little bit more in the sort of ocean metaphor, and I think the ocean was rising long before-

Devlin Barrett: Oh-

Michael Feinberg: the end of the Biden administration.

Devlin Barrett: Oh, certainly. To be clear, I would argue that the real turning point in, in, in the Justice Department's independence and the FBI's independence was the 2016 election and the, the fallout from how the FBI made decisions there. I don't wanna, you know, bore-

Michael Feinberg: Someone should write a book about that.

Devlin Barrett: Yeah. Done. Next. But I think, and, and, and my point about the, the end of the Biden administration is really this, that the, the Biden pardons, I think, were harmful in the sense that they encourage the notion that essentially everybody does this. You know, I think one of the harder things to convey to people in this moment we're in as to, as to why what's happening at the Justice Department matters so much is- I hear, I hear two general reactions to people who are like, "Well, is it really all that important or, or, or dangerous?"

And the first thing is, "Well, everyone does this anyway. Biden pardoned his son, you know, so-and-so pardoned whoever. Like, presidents have always used pardons badly." And that's true to a degree, but what you're seeing here is the mass production of pardons. You're seeing a sort of philosophical expansion of the pardon power in a way that we haven't seen before, in a way that I would argue is very different.

I'm so flipping old, I covered the Marc Rich pardon and its aftermath in the fall, and I covered that investigation. But no one who covered that at that time, I think, could envision where the pardon power is now being used and deployed and how it sort of casts a pall over everything that the administration does.

The, the only other point I would make is that I really think the degree to which the Biden years for the Justice Department Could have gone better is th- there- Merrick Garland was not the most compelling speaker. Neither was Christopher Wray. That's not a, a fault of their character, that's just, you know, a comment and observation on their skillset.

And I think one real big opportunity missed from that sort of interregnum between the two Trump terms was leadership that was more plainspoken, leadership that was more visible and observable, and could sort of start to regenerate some trust, start to regenerate some faith that there are adults in charge, and those adults are doing reasonably well at pursuing the types of criminals and the types of problems that those institutions have pursued for generations.

Michael Feinberg: Yeah, I think you really needed an attorney general in the mode of Edward Levi, who after the Watergate scandals-

Devlin Barrett: Right ...

Michael Feinberg: made the reestablishment of trust in DOJ his number one priority. And in fairness, I think Garland did that, too, but the difference between them is that Garland's way of doing that, I think, was to- for everybody to keep their head down and speak entirely through the work product, whereas Le- Levi, I think, I mean, I have a book of his speeches on the shelf from that era. He did a concerted outreach campaign-

Devlin Barrett: Right. Absolutely.

Michael Feinberg: –to do the same thing. But I, I... Your entire book is about after this period-

Devlin Barrett: Yes.

Michael Feinberg: So I do wanna move on. All right. So your book opens, and based on the conversation we've had for the past 15 minutes or so, I'd say that the Justice Department is almost like a well-tuned marathon runner with a really bad sprained ankle. Like, the bones of functioning, no puns intended, like, the innards are working, it knows what to do, but it's already a little bit handicapped

So Trump is inaugurated and things happen very quickly, but what in your view is the first event in either DOJ or the FBI that really sends up a flare this time is going to be different?

Devlin Barrett: So it really starts at 3:00 PM the day of the inauguration, and 3:00 PM is when about 10 senior Justice Department officials get notified by email that they're being reassigned immediately to something called the “Sanctuary Cities Working Group,” which no one's ever heard of. You know, you can sort of guess what it might be based on the title, but it's pretty clear that these people are being forced out of very important jobs, people who were very senior and had a ton of- were, were frankly not known into the outside world generally, but who had a ton of credibility and institutional clout inside the Justice Department.

And I think the ouster of those people was so important because it's almost like you're pulling out all the important pins in a ma- in an engine, and once you pull those pins out, what happens is the Trump administration has tremendous control to start making sweeping changes inside the department with far less resistance.

And I will say, one of the things that was striking to me about covering the first day, because I do think day ... I spend an entire chapter on day one. I think day one is incredibly important. But even the people experiencing day one inside the department in real time did not necessarily understand the implications and the consequences of what they were experiencing and what they were observing.

So for example, I spoke to people who that first day had a fairly good understanding of who was being forced out, and even then they thought, "Oh, well you know what? This might be good for the department because the Trump administration will go this far. It'll get rid of this, these people. It'll find people it trusts more to do similar jobs, and that'll be it, and that'll, that'll be the end of it."

But the reality was that wasn't the end of it. That was the very beginning of it, and it was a far more strategic and a far more chaotic and, and disruptive administration that they put in motion than the first Trump term. I mean, one of the things that I try to convey in the book is that Trump two in the Justice Department is absolutely nothing like Trump one was. This is an entirely different set of issues, and even the people experiencing it and dealing with it in real time on day one couldn't grasp, couldn't wrap their minds around what was actually beginning to happen.

Michael Feinberg: All right, so those individuals are moved, and we're talking real career lumini- luminaries. We're talking about people like Toscas and EYC who have been at DOJ for ages. And, you know, the government throws around the phrase subject matter expert a lot, probably too much. But, you know, somebody like Toscas, I think he was the longest career employee at DOJ.

And I can speak for myself as I ascended the ladder at the FBI, I never worked on an indictment, controversial, non-controversial, public, sealed, political, non-political in terms of who the defendant was gonna be, that we did not have to get his sign-off on. And overnight, all these people, most of whom were in the national security sphere, if I recall, are all of a sudden told that they're gonna be in the Sanctuary Cities Working Group, where they are apparently going to civilly or criminally litigate against municipalities in the United States that do not cooperate with ICE.

I don't think it really goes anywhere simply because all those people end up resigning, and it's not clear that the Sanctuary Cities Working Group was even ever meant to be a real thing. It might have just been, you know, the foam-lined room we put people to make them miserable. But once that happens and you get, like, you know, a core group of people who choose to leave, what next happens?

Devlin Barrett: So I, I would just, the only thing I would add to that is as important as that, as those changes are to the, the National Security Division when they, when they move out people like George Toscas. Look at what they do to, you know, it includes the top ethics official in the department.

Michael Feinberg: Yes, the pardon attorney. There's a lot of-

Devlin Barrett: It includes, it includes the head of, the head of public integrity. It includes a very important senior antitrust lawyer. There's a strategy and an intelligence to what they do in, in, in those 3:00 PM emails that I, I will say as a reporter, I didn't grasp at the time, but as I worked on the book and I, I sort of, like, unpacked all this, it was really breathtaking.

So 3:00 PM, that's what happens. In about an hour's time after those emails go out, the, the person running the department that day for the Trump administration, a guy named Emil Bove, who is a former defense lawyer for Donald Trump, he has a meeting with senior officials to talk about a pending investigation of Tom Homan, Trump's chosen immigration czar.

And Tom Homan, according to sources, and, and this is fairly well understood, was recorded in an undercover FBI sting taking a Cava bag with $50,000 worth of cash in it. So that investigation hadn't concluded, but that investigation was off to an incredible start from the point of view of an investigator.

And it's, I think it's just as telling that the first order of business for the new administration is to find out exactly what the FBI and the DOJ has on Tom Homan. And the fact that that happens on the first day, I think says a lot about how the administration is going to approach questions of corruption, cases of corruption, allegations of corruption. So I think that's hugely important. And, you know, and they're, they also begin rolling through sort of the, the upper echelon of immigration judges, which obviously is something, you know, the immigration issue is something Trump cares about a lot.

But, you know, when Trump, the first Trump administration started, it was comical sometimes how poorly the people making decisions seemed to understand how the government really worked. I think what's so remarkable about what happens at the Justice Department in the second term is how they, they move to immediately take control of all these parts of the enterprise they can take control of and make sure that there are no, no parts of the machinery that they're not in control of. And that speaks to me to a degree of education and intelligence that they have spent in the four years out of office figuring this stuff out and preparing.

And in that four years, you know, Donald Trump is indicted multiple times. And one of the points I make in the book is, I don't think the public necessarily thought through what is it going to be like if the president is someone who has been a defendant and, and is now has the most power of, of any official in the country.

I have covered a lot of defendants over a lot of years. I don't know many who don't come out of that experience, whether they win or lose their cases, I don't know many defendants who come out of that any way other than incredibly bitter and angry. And I think one of the things that, that really did not maybe get all the attention and thought that it should have by the electorate or even by, you know, reporters, is what is a government run by a former defendant going to look like? And I would say part of my book tries to explain this is what it looks like.

Michael Feinberg: Yeah, so you hone in on Emil Bove's decision with respect to Tom Homan right away, and you sort of just riffed now a little bit about what corruption investigations are gonna look like. And I don't think people who've never worked at DOJ or any of its components, even those who are very much supporters, understand how central to the organization's identity the Public Integrity Section, commonly known as PIN, that oversaw public corruption investigations, was to really representing in most people's minds the best of what the Justice Department was, both in terms of ethics and integrity, but also in terms of just, you know, raw skill, lawyering, writing, advocating.

Like, it really was sort of the crown jewel. You know, if the Office of Legal Counsel is the intellectual crown jewel of the Justice Department, PIN, I think, was very much the litigatory crown jewel. And PIN doesn't really exist in any recognizable form or fashion anymore. Right. What exactly happened there?

Devlin Barrett: So, PIN gets demolished largely because the Trump administration decides early on that it wants the, the, a pending criminal indictment against New York City's Mayor, Eric Adams, to go away. He's been charged wi- in a series of essentially pay-for-play or influence peddling allegations.

And the administration decides, and you can see in Trump's public statements that even before he's sworn into office, he's sort of moving toward this notion that, that this case should go away. But once they're in power, one of Emil Bove's first tasks is to kill the Adams case, and he tries to do that first with the federal prosecutors in Manhattan who brought the case, and they resist mightily. They're either fired or resign in protest. And after that sort of- embarrassing public repudiation from the prosecutors in New York, Emil Bove then turns to the Public Integrity Section and says, "You guys now have to file this motion seeking to throw out this case."

Michael Feinberg: All right. Before you go on-

Devlin Barrett: Yeah.

Michael Feinberg: with what happens when he brings it to the headquarters PIN personnel, what do we know about the individuals who resigned from SDNY rather than do it? Are these sort of left-wing deep state actors, or are we dealing with a different type of person?

Devlin Barrett: No, we're dealing with straightforward career prosecutors, including, you know, Danielle Sassoon, who was running that office in New York a- on essentially a, a temporary basis while they waited to see who Trump would nominate for the job, who has pretty impeccable conservative legal circles credentials.

You know, one of the things that the book tries to lay out, whi- which happens over and over and over again, is, when the Trump administration wants DOJ to do something, and even their own, some of their own people, even some of their own, you know, fellow conservatives, fellow Republican lawyers say, "Wait, this is a bad idea. This is not the road to go down," those Republican lawyers will be fired or have to resign because the administration simply refuses to accept a counterargument on, on stuff like this. And, and that's what happens to Danielle Sassoon. That's what has happened. That pattern repeats itself over and over. And, and part of why I think the book is in a, in a, in a helpful addition to all the public reporting is, you know, public reporting tends to get flashpoints, and certainly the Adams case was a flashpoint that was covered.

But I think when you can pick out the other parts that weren't previously known and show the pattern, the pattern is, is, is pretty compelling. And the pattern is that they are willing to destroy the careers of their own allies to get the results they want. And that happens over and over. And after they do that to the career prosecutors in, in New York who, who oppose the, the, the just abandonment of this case, that pressure then turns south to, to the Public Integrity folks.

Michael Feinberg: And what happens to those Public Integrity folks at the RFK Building in D.C.?

Devlin Barrett: They're presented with a one-hour ultimatum from Emil Bove, who says, "I need two people to sign this motion. Whoever signs this motion will emerge as leaders of the Public Integrity Section," which everyone on the call understood to mean that he was willing to promote anyone who was willing to sort of put their name on this thing they didn't believe in.

And it's just an amazing moment. And, and part of the reason why they understood that this was a dangle of a promotion was because the people above them in the senior positions had already resigned the previous day because they were the first recipients of the pressure from Bove to get this done.

And so this ultimatum comes in. They have sort of a very scrambled, rushed debate amongst themselves, and eventually one of the s- more senior lawyers agrees to sign the Adams dismissal motion. And there are some, I think, understandable and, and depending on who you talk to, pretty honorable reasons for doing that, for signing it. But I will say I, I think at the time the PIN staff hoped, the Public Integrity lawyers hoped, that if nothing else, this would preserve the, the entity of the Public Integrity Section, preserve their work, preserve their cases.

And, and in fact, it, it pretty much failed to do that. The Public Integrity Section was, was torn apart more or less. It exists on paper today, but it is largely non-functional, and the consequences of that non-functional Public Integrity Section are massive and went far beyond even what people in the department feared would happen if you got rid of the Public Integrity Section.

Michael Feinberg: All right, so we've talked a lot about sort of the decline and fall of the Public Integrity Network, but DOJ prosecutes a lot of matters that have nothing to do with public corruption. Is a similar dynamic happening in the National Security Division, in, like, the Organized Crime and Gang Section, in the various white collar sections? You know, is PIN functionally just an example of something going on in a lot of places, or is it sui generis?

Devlin Barrett: I think there are things that are unique to PIN's situation. For example, because PIN acts as a sort of quality control for corruption cases across the country, losing PIN means that you lose even the application of broad standards to how you pursue corruption cases.

But other divisions had different types of problems. So for example, the National Security Division, Counterterrorism and Counterespionage, what happened there was so many people left and so many other people were, were sort of tasked out, farmed out to, like, pretty random collection of priorities, everything from, you know, immigration to, you know, Epstein file review, that the effectiveness, the, the capacity of the National Security Division has declined dramatically according to the folks I've talked to, and there's a lot of empty chairs there.

One of the, one of the commonalities of all these parts of the Justice Department is there are so many more empty chairs than there used to be. You know, the Criminal Division is down something like 20% of its people. That's an, a huge problem for trying to do the amount of work that you did before. It, and when you look at the Criminal Division, they, they've struggled with other issues like the creation of a new fraud division that sort of now everyone's a little bit confused as to what exactly their job is.

Michael Feinberg: Well, and who they report to. It's not-

Devlin Barrett: Right

Michael Feinberg: clear to anybody, is this a Indigenous Justice Department group, or is it a collective of DOJ lawyers on loan to the White House?

Devlin Barrett: Right

Michael Feinberg: Because there's been reporting both ways.

Devlin Barrett: Right, and I, I'll be honest, I think as we sit here today, I think there is still just a tremendous amount of uncertainty within the building, even by the people running the building, as to exactly how this is going to work.

It's a lot to unpack and repack. And, and just as another example, the Tax Division of the Justice Department doesn't even exist anymore, 'cause they shut it down completely.

Michael Feinberg: Wait, we should be clear here. We're not speaking colloquially. We're not saying, like-

Devlin Barrett: Yeah.

Michael Feinberg: there are a lot of empty chairs and they're not doing as many cases. Like, they've been removed from the org chart.

Devlin Barrett: Correct. The Tax Division no longer exists. And the Justice Department says that their work has been farmed out to the, you know, their criminal cases have been farmed out to the Criminal Division and their civil cases have been farmed out to the Civil Division. But I, I will just say one of the things my ... I have a chapter called Playing Favorites in the book, which is all about how the, the veteran tax prosecutors in the department were absolutely horrified by the way their cases started being handled and dropped or settled on orders from the office of the deputy attorney general.

That has been, I think, one of the more alarming and, and consequential decisions of the first year. But it also, I think, I, I don't, I don't wanna come off as like a doom and gloomer because I don't think that way about the department in general. I, I also think the tax division weirdly holds some answers for what the future might look like and the, and the way some of this could be made whole again, in that unlike most of the other parts of the Justice Department, the tax division, largely because of the Watergate scandals, has a series of laws that are laws passed by Congress protecting and limiting how tax information, tax investigations are used and, and those laws are designed to prevent the misuse of tax investigations.

Michael Feinberg: Yeah, I had to sit throuh every single year, very long training sessions on what the steps were to obtain tax information.

Devlin Barrett: Right. There's a lot of them.

Michael Feinberg: There's a lot. What you were allowed to do with it once you received it. The answer is not much.

Devlin Barrett: Yep.

Michael Feinberg: And how you had to dispose of it once you were done using it. And it had the pragmatic effect of, I never met a single agent who ever attempted to get tax information for a criminal investigation, I'll be honest.

Devlin Barrett: Right, right.

Michael Feinberg: It just wasn't, the juice was not-

Devlin Barrett: Right.

Michael Feinberg: -worth the squeeze unless you were fundamentally looking at a tax-based charge.

Devlin Barrett: Right. And, and look, to be clear, I think you can see the beginnings of ways in which this administration is trying to change that, this administration is trying to loosen that up, but it is hard to do because the laws that are on the books.

And I think when you talk about one of the, one of the odd quirks and contradictions of the place is that we could very well be in a situation a few years from now where, you know, the tax division is long gone and forgotten, but the rules of the tax division, the limitations of the tax division, have actually, like, survived in some way.

I'm not predicting that. I think reporters should never predict anything, but I, I do think there is an important lesson there for the DOJ and for people who are concerned about the Justice Department's independence.

Michael Feinberg: All right, I'm gonna take your last statement as a challenge, and I'm gonna ask you to predict the future. Or at least, or at least, you know, help us figure out the broad parameters along which it may travel.

Devlin Barrett: Sure.

Michael Feinberg: We've only scratched the surface of your book, but I will simply say the picture it paints of DOJ is a building in utter disarray. Lacking what lawyers would call neutral principles to make sure that its decisions are apolitical.

The very title of your book, you know, demonstrates its thesis, which is that the Justice Department, in a very real sense, has become a cudgel used to go after the president's enemies.

We're in uncharted territory for American legal history since the founding of the department, you know, shortly after the Reconstruction Era or during the Reconstruction Era. Can it ever come back to what it was before?

Devlin Barrett: Exactly what it was before, my prediction would be probably not. And some of that is, is, I would argue, due to even, even broader events. Like, I think the government and our country still writ large is still digesting and processing exactly what the Supreme Court presidential immunity decision is going to mean for how the government works.

I'll just give you one small data point that was so striking to me when it happened earlier this year, that the Justice Department senior officials are in these pitched battles with local bar groups which handle attorney discipline because they don't want bar groups disciplining senior Justice Department officials for how they conduct a case or any potential misconduct.

Michael Feinberg: And the background to this is that in the wake of the attempt in 2020 and 2021 to overturn the election through what every court, what, like, 59 courts found completely spurious and baseless lawsuits, a number of the individuals who are the architects of that strategy found themselves disbarred.

Devlin Barrett: Right, or under threat of disbarment. I, I, I, I will say, as someone who covers lawyers a lot, I will say I find there is a shocking lack of enforcement of legal ethics rules of, of forcing lawyers to behave as officers of the court. But i- in this instance, what was, what's so bizarre to me is as, as, you know, some of these Trump administration lawyers are fighting these bar associations, they're arguing in filings that the presidential immunity decision means that bar associations cannot conduct misconduct investigations of lawyers working for the government.

That is a pretty sweeping application of the s- Supreme Court ruling, and I can't pretend to see inside the Supreme Court justices' heads to know whether they would follow that view. But, like, my main point is the implications of that are so vast, but they're particularly important for the Justice Department, which are the, you know, the, the, the lawyers for the federal government.

Michael Feinberg: Let's introduce a dichotomy. I mean-

Devlin Barrett: Yeah.

Michael Feinberg: you've been to a number of criminal trials, I'm guessing.

Devlin Barrett: Yes.

Michael Feinberg: Probably more than me. What does an assistant U.S. attorney, what does a federal prosecutor say before they speak when they're introducing themselves to the court?

Devlin Barrett: They say, "For the United States." When they, when they introduce themselves, you know, it would be, you know, I'm not a lawyer, I never have been, but they would be, "Devlin Barrett for the United States, Your Honor."

Michael Feinberg: Right, and so the re- the reason I bring that up is I, I just, I do wanna foot stomp for our audience. The notion that the Justice Department writ large is the president's law firm is a new one. The, there are components of the Justice Department, like the Office of Legal Counsel, which pronounces on the constitutionality of proposed executive actions, that in a sense are advising the president on legal matters.

But the notion that the Justice Department is in service of the White House, and essentially a wing of really well-educated foot soldiers who operate in a very specific arena, is very new, and really flows from a legal theory, the unity- unitary executive, which wasn't even articulated until after Watergate, and has never really been put into practice until now. So we are still in very much uncharted territory.

Devlin Barrett: So I, I would go further than that. I would say not only is this a, a new approach for the Justice Department, this approach is incredibly offensive to many DOJ lifers. You know, the Justice Department in, in, in these confrontations that you see between senior Trump administration officials and career lawyers at the Justice Department, you see time and again people like Emil Bove or others making the argument that, "You took an oath to the Constitution."

And that's true. Everyone who works at the Justice Department takes an oath to uphold the Constitution. But what Bove and others are arguing in these confrontations in which they fire people is that oath requires you to do whatever the president wants you to do. And that is radically different from how generations of Justice Department lawyers have understood that oath.

And, and I, and I don't think that is a, that is an incredibly novel and aggressive interpretation of what the oath means. And, and a lot of the people who left, I, I can tell you just from having spoken to many of them, a lot of the people who left on their own terms left largely because they found that demand, that particular insistence that your loyalty to your country is defined by your subservience to, to the president's wishes, really, really difficult and, and, and impossible to swallow, essentially.

And so that is really one of the, the, the fundamental tensions that, like, goes all through the book, and it's a pattern that repeats itself again and again and again, where lawyers have these sort of late-night crises of conscience where they think, "I took an oath. I believe in my oath "I think my oath tells me that I cannot do this." And the answer comes down pretty quick from that, "Okay, fine, you're fired."

Michael Feinberg: So l- let's talk about what this means, not in a- any sort of metaphysical or jurisprudential sense, but, like, in just sort of, like, logistics and brass tacks. There are a number of positions within the Justice Department that traditionally do not change throughout administrations.

I'm not just talking about the prosecutors. I'm talking about individuals who are in between the prosecutors and the assistant attorneys general. You know, people like the principal deputy assistant attorney general.

Devlin Barrett: Right.

Michael Feinberg: You know, individuals who are experts on their, in their field, have been doing this for decades, are turning down a mint from the firm world, but they don't change administration to administration always.

You know, I dealt with the same one throughout the Obama, Trump, and Biden years who only left very recently. The FBI has even more. Like, in, in, in nor-

Devlin Barrett: Oh, a thousand percent.

Michael Feinberg: yeah, normally there is o- exactly one political appointee at the FBI, maybe two if you count the general counsel, who is traditionally chosen by the director.

But one of the things that really worries me, and I think you hinted this too in your book, is that those days are over. We, we are not gonna have a country for generations, if ever, where there is a quantum of apolitical positions at the Justice Department that do not change every four years.

Devlin Barrett: Right, and I think, I think it's a hugely important point for how the work actually gets done and how well the work actually gets done. And, and I guess what, what I would say is this: one of the most aggressive things about this administration has been its all-out assault on civil service protections.

This is, this is across many agencies, obviously, not just the Justice Department. But remember, the Justice Department is a fundamentally unique agency within the government. It's not like the Department of Agriculture. It's not like the Department of Commerce. This isn't simply a question of, well, whatever the new policy is, we'll just execute the new policy. The Department of Justice is about right and wrong, and you'd want decisions of right and wrong, decisions of punishment, decisions of guilt and innocence to be decided by people who aren't making those decisions for political reasons or, or ideological reasons.

And it's not a perfect institution, but, but it's always been built on that principle. And when you enact a practice of just firing civil servants because they won't do something they think is wrong, you are going down the path, as you say, to creating an, an institution that is dominated by baldly political decision-making.

And, and I think one of the challenges of telling that story, one of the challenges of conveying that story to people is I think sometimes in, in the, in the world of the public, they hear stories about fired federal workers, and they think, "Oh, well, I don't have those kind of job protections. Why should they?"

The reason why it's different for civil service generally, but especially, especially for prosecutors and agents, is that if you can just fire prosecutors and agents for doing a case that angers some politician, that institution will change radically over time. That institution will become a more ineffective institution, a more cowardly institution, and, and almost certainly a more vindictive institution.

And so when I talk about the firings and the resignations, I always try to explain them in terms of it's not really about the people being fired or resigning, as bad as it is for those people. The civil service protections are not actually meant to protect the civil servants. Those protections are meant to protect the public from having terrible people in these important government jobs with real power.

And I think one of the ways in which this, this time we're in is incredibly risky is one of the things, one of my chapters in my books is c- is called “The Worst Lawyers Money Can Buy,” and I called it that because we're starting to see instances where really unqualified people are making really important decisions.

And that has tremendous consequences, not inside the building, although it does that, outside the building for everyone else. And, and I, I hope that people understand that this is not, you know, ultimately about bureaucracy or ultimately about, like, jobs. It's, it's a story about right and wrong, and if you just fire everyone you disagree with, if you just fire everyone you, you think you can't trust, you're going to end up with institutions in the Justice Department and the FBI that punishes the innocent as well as the guilty.

Michael Feinberg: Well, on that ominous note, with that final warning, I think we will leave things. I will simply note in closing that we have barely scratched the surface of the events covered in this book. And if you found the conversation that Devlin and I had interesting, there is a lot more where that came from. So it really is a good encapsulation and analysis of how that building has fundamentally changed over the past 18 months.

Devlin Barrett, thank you again for joining us on the Lawfare Podcast.

Devlin Barrett: Thanks, Mike. Great to see you.

Michael Feinberg: The Lawfare Podcast is produced by the Lawfare Institute. If you want to support the show and listen ad-free, you can become a Lawfare material supporter at lawfaremedia.org/support. Supporters also get access to special events and other bonus content we don't share anywhere else.

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