Michael Cohen case and others have judges second-guessing Trump's DOJ

Minutes into a hearing to determine whebther the Trump administration had retaliated against...

Posted: Jul 25, 2020 11:04 AM

Minutes into a hearing to determine whebther the Trump administration had retaliated against Michael Cohen in sending him back to prison, federal Judge Alvin Hellerstein said he didn't believe prosecutors' version of events.

Two government officials signed sworn declarations stating they had no knowledge that Cohen was writing a tell-all book about President Donald Trump when they asked him to agree to a condition that would prohibit him from engaging with the media. The officials said they had copied language used with another high-profile inmate and there was no input from senior Justice Department officials.

Hellerstein shot down the argument.

"How can I take any other inference other than it was retaliatory?" Hellerstein asked, adding that he had never seen the no-media condition in 21 years on the bench. "Nor is it feasible to believe that [the probation officer] was not asking for something like this because he had some instruction," he added, suggesting a top official had intervened in the case.

Cohen's lawyers presented no direct evidence that there had been any political interference in the case but Hellerstein said the government's position strained logic and ruled that Cohen had been retaliated against for the book.

The judge's frank rebuke of the government is the latest in a series of high-profile cases where judges have questioned the honesty of the Justice Department and the beginning of what former prosecutors worry is an erosion of the integrity of the institution.

In those cases, the judges have homed in on legal theories that appear to be bent to fit the President's political interests.

Recently judges have challenged the Justice Department's positions in cases from the prosecutions of Trump associates Michael Flynn and Roger Stone to disputes over homeland security policies and battles over free speech to block the publication of books, such as one by former national security adviser John Bolton, that are critical of the administration.

Judges often challenge prosecutors because of the power they wield, but some former prosecutors say Hellerstein's ruling appears to be a sign of the times

"I do think things are different now," said Jennifer Beidel, a white-collar defense lawyer in Philadelphia who left her position as a prosecutor in Manhattan's US attorney's office in December. "Judges make findings all the time about prosecutors making mistakes. But in Cohen's case -- some of what Judge Hellerstein was saying appeared to come from a place that seems particularly responsive to these times."

Elie Honig, a CNN legal analyst and former prosecutor in New York and New Jersey, recalled speeches by former Justice Department leaders who would warn their prosecutors about the "reservoir of trust" the department had built with the judiciary. "And we rely on that reservoir of trust to do our jobs. It takes years to fill, but it's very easy to empty, if you fudge the truth one time. We've seen a series of leaks sprung in that reservoir," Honig added.

"The judiciary typically puts a lot of trust in the Justice Department," Honig said. "Judges look for federal prosecutors to give it straight down the middle and accurate. But if the leaders of the institution are constantly being called out, that undermines every prosecutor when they go in front of a judge every day."

The "reservoir of trust" idea was a favorite line of former FBI Director James Comey, who spoke about it often while serving as a senior official but has himself drawn criticism of his leadership. Trump has pointed to Comey, whom he fired in 2017, and his underlings as eroding law and order at the FBI. Federal district judges on the Foreign Intelligence Surveillance Court upped their scrutiny of lawyers after FBI officials under Comey made problematic representations in surveillance applications in the early Russia investigation, missteps that began before the Trump administration.

Danya Perry, Cohen's attorney, said on CNN's "New Day" that the ruling was a victory for "all of us who are deeply concerned about this Department of Justice being used as both a shield to protect this administration's friends and family and also as a sword to cut down enemies of the administration."

The effect can be cumulative

The Cohen court hearing on Thursday came the same day the Trump administration admitted it had made false statements to a judge in defending the Department of Homeland Security's decision earlier this year to block New York state residents from participating in international travel programs.

The judge, Jesse Furman, presiding over the DHS case also oversaw a lawsuit brought by state attorneys general against the Commerce Department challenging the addition of a citizenship question to the US census -- another example where a judge said the administration's words couldn't be taken at face value. (The Supreme Court would eventually rule against the administration.)

Four months into the census case, attorneys with the US Attorney's Office for the Southern District of New York removed themselves from the case and informed the judge that Justice Department attorneys in Washington would be handling it going forward. No additional detail was provided, but, according to people familiar with the matter, there was disagreement between New York and Washington officials over documents that needed to be turned over to the states, prompting SDNY's exit.

The move drew attention from Furman, who noted, "There are dozens of highly qualified lawyers and professional staff in the Civil Division of the United States Attorney's Office for the Southern District of New York -- the office that normally represents the Government in this District."

"The Court can only speculate why the lawyers from that Office withdrew from their representation of defendants in these cases," he wrote.

Furman also called out administration officials for what he said were inaccurate presentations. In the opinion blocking the addition of the citizenship question, the judge called a memorandum by Commerce Secretary Wilbur Ross and testimony by Ross' deputy chief of staff and director of policy "misleading, if not false."

The Supreme Court ultimately ruled that the Trump administration's rationales for adding a citizenship question in 2020 were "pretextual," meaning made-up to hide the real reason. That led to more tangled litigation in court.

Instances where judges have publicly called out the Trump administration have accumulated in recent months.

Last month, when the Justice Department sued to stop the release of Bolton's book about the President, the judge challenged the honesty of the arguments.

"How do I decide whether these type of people are really telling me the truth?" Judge Royce Lamberth asked about the Trump administration's representations. During the hearing, where intelligence officials swore that Bolton exposed national security secrets in the book, Lamberth highlighted the difference in a judge's level of trust with career officials versus "a Trump crony."

Open letters and extra questions

The abrupt firing of Manhattan US Attorney Geoffrey Berman and the other instances have led former prosecutors to worry about credibility in the courts --and to vocally push back on any damage the Justice Department may have done.

"They are politicizing an office that for more than 200 years has remained apolitical, and are undermining confidence in our criminal justice system," more than 100 former SDNY prosecutors wrote in an open letter that weekend.

The letter was one in a series this year from former prosecutors and other executive branch officials warning about integrity in the judicial system and the President's influence over Attorney General William Barr. In recent months, several career prosecutors did not sign their names to legal briefs in the criminal cases of Stone and Flynn after Barr weighed in on those prosecutions. The refusals were significant gestures of protest in the legal profession, and ones that caused multiple judges to scrutinize the department's decisions.

Judge Amy Berman Jackson in Washington demanded to know why prosecutors had changed course before Stone's sentencing.

Another federal judge in Washington, Emmet Sullivan, who oversaw the Flynn case, has taken the unusual step of asking the full appeals court to weigh in on prosecutors' request to dismiss Flynn's false-statements charge instead of rubber-stamping the Justice Department.

Both cases made many former prosecutors feel uneasy about the lasting impact.

"Any damaged relationship may not affect most cases between the Justice Department and judges, but it does create situations where judges may question the motivations or representations of federal attorneys more," Honig said. " 'Are these DOJ officials giving me the straight deal?' judges might wonder."

Trump commuted Stone's sentence days before he had been set to report to prison for obstructing Congress and threatening a witness.

Judge Reggie Walton in Washington slammed Barr's approach to announcing the findings of the Mueller investigation in an opinion demanding to see an unredacted version of the probe's final report.

Walton said Barr's description of the Mueller report led him "to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse."

"These circumstances generally, and Attorney General Barr's lack of candor specifically, call into question Attorney General Barr's credibility and in turn, the Department's representation" in the case, Walton said.

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