A Crack in The Right Over Prosecutors and The Law

Differing interpretations of Attorney General Robert H. Jackson’s classic 1940 speech, “The Federal Prosecutor,” figured in Thursday’s showdown in the Eric Adams case.

 

Robert H. Jackson is seated in a chair and wearing robes in a formal portrait.

“The prosecutor has more control over life, liberty and reputation than any other person in America,” Robert H. Jackson said in 1940 while serving as attorney general.Credit...Oscar White/Corbis, via Getty  

 

By Adam Liptak

Reporting from Washington

 

Speaking to U.S. attorneys in 1940, Attorney General Robert H. Jackson reflected on the enormous scope of prosecutorial power and the crucial importance of shielding it from politics.

“The prosecutor has more control over life, liberty and reputation than any other person in America,” Mr. Jackson, who would go on to be a Supreme Court justice of rare distinction, wrote in a text that is taught to law students and circulated to young lawyers.

Sharply differing interpretations of the classic 85-year-old speech, “The Federal Prosecutor,” figured prominently in an extraordinary exchange of letters on Thursday that led to the resignation of Danielle R. Sassoon after she refused to carry out the Trump administration’s command to drop the corruption prosecution of New York City’s mayor, Eric Adams.

The two views reflect a schism in conservative legal thought over how prosecutors, now working for a Trump-led Justice Department, should balance their duty to obey orders from superiors with their obligation to follow their best understanding of the law. One view emphasizes caution, deliberation, and independent and decentralized judgment, while the other values top-down vigor in the service of policy goals that can seem transactional if not unprincipled. 

The split could reshape not only the relationship between federal prosecutors around the country and their bosses in Washington, but also the limited but real discretion enjoyed by all sorts of other officials throughout the government. Thursday’s events, in other words, are emblematic of the ethos of the second Trump administration, one that requires federal workers to fall into line or be fired.

Ms. Sassoon, whose resignation led to a cascade of others, cited Mr. Jackson’s speech to argue that the administration’s directive was not the product of a good-faith difference of opinion but an assault on the rule of law.

She wrote that she could not ethically ask a judge to dismiss a case when she did not believe the law supported the move and quoted Mr. Jackson: “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.” 

Danielle Sassoon walking outdoors with three other people.

Danielle Sassoon cited Mr. Jackson’s speech in her decision not to carry out the Trump administration’s command to drop the corruption prosecution of New York City’s mayor, Eric Adams.Credit...Kent Nishimura for The New York Times

Emil Bove III, who represented President Trump in three criminal cases and now serves as acting deputy attorney general, responded in accepting Ms. Sassoon’s resignation that federal prosecutors, like other members of the executive branch, are tasked with advancing the president’s goals. The case against Mr. Adams, Mr. Bove wrote, interfered with the mayor’s ability to address two of the administration’s key priorities, immigration and violent crime. 

“You lost sight of the oath that you took when you started at the Department of Justice by suggesting that you retain discretion to interpret the Constitution in a manner inconsistent with the policies of a democratically elected president,” he wrote.

Mr. Jackson was 48 and just three months into his tenure as attorney general when he gave his speech, which is universally acknowledged to be the classic account of the prosecutor’s role. He had earlier served as solicitor general, the federal government’s top appellate lawyer, and he would go on, in addition to sitting on the Supreme Court, to be a prosecutor at the Nuremberg trials after World War II.

A central point of his speech was that U.S. attorneys, the top federal law enforcement officials in the nation’s 94 judicial districts, should generally have the last word. Local prosecutors know the facts on the ground, the judges they appear before, the jury pool and “local sentiment and opinion,” Mr. Jackson wrote.

“It is an unusual case,” Mr. Jackson wrote, “in which his judgment should be overruled.”

Ms. Sassoon wrote that the decision to dismiss the charges against Mr. Adams over her objections was not the product of the sort of sober deliberation that should warrant an exception to that general approach. She said Mr. Adams’s lawyers had urged what she characterized as a “quid pro quo” in which the mayor would support Mr. Trump’s priorities if the indictment were dismissed.

“I remain baffled,” she wrote, “by the rushed and superficial process by which this decision was reached, in seeming collaboration with Adams’s counsel and without my direct input on the ultimate stated rationales for dismissal.” 

Ms. Sassoon’s interpretation of Mr. Jackson’s words is the conventional one, and it is a reflection of her credentials and place in the conservative legal community. A graduate of Harvard College and Yale Law School, she served as a law clerk to two leading conservative jurists, Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit, in Richmond, Va., and Justice Antonin Scalia.

John Q. Barrett, a law professor at St. John’s University who is writing a biography of Justice Jackson, said there was little doubt about how he would have viewed the Justice Department’s handling of the Adams case. “Pretty obviously he would be dismayed and appalled,” Professor Barrett said.

Emil Bove III sitting at a table in a courtroom.

Emil Bove III, the acting deputy attorney general, seemed to ignore the main theme of the speech and quoted snippets from it in his response to Ms. Sassoon.Credit...Pool photo by Angela Weiss

Mr. Bove, however, drew a different lesson from the Jackson speech in his letter accepting Ms. Sassoon’s resignation, writing that there was “great irony” in Ms. Sassoon’s invocation of the speech.

“His remarks are unquestionably relevant here, but not in the way you have suggested,” he wrote.

Mr. Bove, seeming to ignore the main theme of the speech, quoted snippets from it. 

“Jackson warned that ‘some measure of centralized control’ over federal prosecutors was ‘necessary,’” he wrote.

“The senior leadership of the Justice Department exercises that control,” Mr. Bove went on. “Moreover, one of Jackson’s concerns was that ‘the most dangerous power of the prosecutor’ arises from the risk that the prosecutor would ‘pick people that he thinks he should get, rather than pick cases that need to be prosecuted.’”

Judge Wilkinson, who was among the judges President George W. Bush considered naming to the Supreme Court, said on Friday that Ms. Sassoon had been an exemplary law clerk.

“While I do not know the particulars in this case,” he said, “what I do know is that Danielle possesses great integrity and courage, which has always made me proud.”

In a tribute after Justice Scalia died in 2016, Ms. Sassoon wrote that his loyalty was to neutral legal principles. 

“Justice Scalia was devoted to the integrity of reasoning and ideas,” Ms. Sassoon wrote. “He cared deeply about logic, process and the rules that undergirded particular outcomes — those rules would endure and be the tools used by lower courts to decide future cases.”

 

Ms. Sassoon added, in a passage that seemed to anticipate her resignation, that Justice Scalia “lacked the abundant caution that plagues today’s media-conscious politicians, judges and lawyers.”

In instructing Ms. Sassoon on Monday to dismiss the charges against Mr. Adams, Mr. Bove invoked a different set of values, one rooted in politics and payback.

“It cannot be ignored that Mayor Adams criticized the prior administration’s immigration policies before the charges were filed,” Mr. Bove wrote. 

In a footnote, Mr. Bove denied offering an explicit deal to Mr. Adams’s lawyer, writing that he said at a meeting last month that “the government is not offering to exchange dismissal of a criminal case for Adams’s assistance on immigration enforcement.”

obert Jackson taking an oath with his right hand raised while standing between two other men, including President Franklin D. Roosevelt, who is sitting in a chair.

Mr. Jackson taking his oath as attorney general in the Oval Office with President Franklin D. Roosevelt and Justice Stanley F. Reed.Credit...Associated Press

The footnote should be read as a warning sign, Stephen Vladeck, a law professor at Georgetown, wrote in a newsletter on Thursday. “The need to put in writing that dropping the prosecution was not in exchange for ‘assistance on immigration enforcement,’” he wrote, “sure seemed to strongly imply that actually … it was.”

  

Mr. Bove, in a sentence in some tension with Mr. Jackson’s speech, said the administration would soon turn its attention to a new target. “There is also questionable behavior reflected in certain of the prosecution team’s decisions,” he wrote, “which will be addressed in the forthcoming investigations.”

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. More about Adam Liptak