Editors’ Note: Jon Liebman, chairman and CEO of Brillstein Entertainment Partners, is a former Assistant U.S. Attorney in Manhattan. He was one of 180 former U.S. Attorneys and Assistant U.S. Attorneys for the Southern District of New York to have sent a bipartisan letter to Deputy U.S. Attorney General Rod Rosenstein in May asking that the DOJ appoint a special counsel to oversee the investigation of Russian interference with the 2016 presidential election. Liebman is also a member of the Council on Foreign Relations and the Pacific Council on International Policy.
Thirty years ago, I served as a young federal prosecutor in the U.S. Attorney’s Office in Manhattan. Prosecutors in that office, fictionalized in the show Billions, have developed and conducted some of the most groundbreaking, creative, and occasionally controversial criminal prosecutions in American history.
The historic Wall Street cases involving Michael Milken, Ivan Boesky and Bernie Madoff happened there. The government’s sustained attack on La Cosa Nostra originated there. Major political corruption cases involving federal officials and members of Congress, took place there. All of the major media and entertainment companies fall within this U.S. Attorney’s Office’s jurisdiction. Indeed, federal prosecutors there are reportedly now conducting a criminal investigation into the settlement of sexual harassment cases against Roger Ailes and 21st Century Fox.
And because President Trump and his family have extensive business holdings in New York, the U.S. Attorneys in New York City may be called upon to investigate the propriety of Trump-related questionable financial dealings. Prosecutors try to do their work in secrecy, but there are signs that their digging has already begun — the Brooklyn U.S. Attorney’s Office has subpoenaed the Kushner Companies in connection with some of their investments in exchange for visa activities in China. And, the Manhattan-based office is reportedly investigating former Trump Campaign Chairman Paul Manafort in conjunction with Special Counsel Mueller’s Russia-related inquiry.
To serve their country properly, these federal prosecutors need to know they can function without being politicized or compromised. That’s why there is a long tradition of independence among prosecutors. This is so ingrained that the U.S. Attorney’s Office in Manhattan has often been referred to as the “sovereign district of New York.” When I was there, one of my colleagues felt free enough to call the actual sitting Attorney General (and his boss) “a sleaze” during the trial of a U.S. Congressman for political corruption.
This need for independence is why Preet Bharara, when he was the U.S. Attorney, declined to take President Trump’s telephone calls on multiple occasions. He was fired days later.
In our sophisticated system of checks and balances, important customs have arisen to protect prosecutors from being compromised by political encroachment. One of those traditions is that the U.S. Attorneys are nominated by the President with input from the Senators from the states where the districts sit, vetted by the FBI and the Department of Justice, and confirmed by the whole U.S. Senate. Traditionally, they are not interviewed by the President.
Enter Donald Trump. We have just learned that Trump is now taking the highly unusual step of violating this protocol. He is now personally interviewing candidates for three key U.S. Attorney positions — Manhattan, Brooklyn, and Washington, D.C. — all places where he and his family have extensive and ongoing business dealings.
Notably, the President reportedly has not interviewed any candidate for any of the other U.S. Attorney positions across the country.
What are his motives? Why would the President wish to create a personal relationship with these potentially powerful prosecutors?
Here’s the White House’s explanation: the President is merely exercising his “constitutional power…[to] talk to individuals nominated to positions within the executive branch.” No argument there. He has the power to talk to them.
But why is he singling out these potential prosecutors, and what does he want to “talk to” them about?
Two of the likeliest explanations are worrisome:
- The President doesn’t want to appoint investigators and prosecutors who are independent. He’d prefer dependent ones. Why else would he shut the door on the Attorney General of the United States, and privately ask the Director of the FBI for personal “loyalty”?
- A second explanation is even more pernicious — that Trump wants to influence actual or potential criminal investigations that could reach people in his orbit.
This is the explanation that applies best to a President who told the longtime FBI Director to “let go” of an open criminal investigation of his then very loyal National Security Advisor Michael Flynn. When it became clear that the FBI Director wouldn’t take Trump’s loyalty oath and oblige, the President fired him. He then clumsily cooked up some apocryphal reasons for doing so.
Clearly, Trump attempted to frustrate an ongoing and actual criminal investigation. He wasn’t embarrassed about that; in fact, Trump was rather explicit about his motives in conversations with the FBI Director, in an interview with NBC’s Lester Holt, and in an Oval Office meeting in which he told Russian officials that he had fired the “nut job” FBI Director to ease the pressure from the Russia investigations. In time, we will find out from the Special Counsel if this blatant attempt to impede an ongoing criminal inquiry rises to the level of the criminal obstruction of justice in violation of federal law.
Not surprisingly, Trump’s pattern of cavalier and authoritarian disrespect for our system of checks and balances is continuing. Six months after canning the FBI Director, he is personally talking to potential nominees for key prosecutorial positions that may directly impact him and his associates. In stark contrast, over eight years President Obama never interviewed any of the U.S. Attorney nominees he submitted for confirmation to the Senate.
To protect the quasi-independence and credibility of federal prosecutors, we need to know more about these interviews. Who else participated in these highly unusual conversations? What was said? What was implied? Are there notes?
I served many years ago with two of the potential prosecutors whom Trump has interviewed for these key jobs, and I have no reason to doubt their integrity. Still, I want to know whether they would speak to the President during their terms in office about pending matters that may involve people associated with him? Or would they decline to accept a telephone call from the President, as former U.S. Attorney Preet Bharara did when President Trump called him on multiple occasions?
These unusual times call for a tenacious defense of our system of checks and balances. In considering these candidates, we need to go beyond the usual round of generic questions and answers about the administration of justice. Congress and the media should press these nominees about all of their contacts with the President, the campaign, and any of the president’s associates or intermediaries. How did they come to be nominated? To protect their own credibility and that of the offices they may lead, it’s in their interest to clarify everything about their path to being nominated and interviewed by the President.
When you become a federal prosecutor, you have the privilege to take an oath. You swear to “support and defend the Constitution of the United States against all enemies, foreign and domestic” and affirm that you “will bear true faith and allegiance to the same.” That’s where your loyalty lies.
I cringe every time when I hear the President refer to the nation’s military leaders as “my generals.” Let’s not make it so easy for him to say “my prosecutors.”