Project 2025 and Justice - Repeat rather than Resolve
Project 2025's prescription for the Justice Department contains several themes. Taken together, these themes merely repeat problems with federal prosecution rather than resolve them.
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Justice in Brief
In the Western District of Texas, a man entered a guilty plea to illegally important native Australian reptiles into the United States. The endangered reptiles were imported after the man falsely represented the reptiles were to be part of the Austin Reptile Center, a non-existent entity.
In the District of Maryland, a man was sentenced to enticing minor children to engage in sexually explicit acts via online chat platforms. Over the course of several years, the man spoke with hundreds of minors and recorded them engaging in sexually explicit conduct.
In the Middle District of Florida, two men were charged with exporting various firearms and military equipment to Colombia with the intent that it go to Venezuela to assist in paramilitary activities in Venezuela. Before exporting these items, the men failed to secure the necessary licenses.
Project 2025 and the use of prosecution to advance politics
Project 2025, the Heritage Foundation’s plan for the next conservative presidential administration, contains a chapter on the Justice Department. Gene Hamilton, a former advisor to Attorney General Jeff Sessions and high-ranking member of the America First Legal Foundation, drafted the Justice Department plan. The plan contains numerous broad proposals but provides few specifics. Nonetheless, two key themes emerge. First, Hamilton advocates for decentralized prosecutorial discretion. Second, he argues that proper personnel are essential for the plan. Both are long-standing political and policy choices that all administrations must make. A third theme—which reveals more of the politics than the reality—is that Hamilton claims the Justice Department is not pursuing matters it should. Yet, in reality, the Department is addressing these concerns.
The first theme to emerge from the Project 2025 plan is a preference for decentralized control. The degree of centralization within the Justice Department refers to the amount of authority exercised by the Justice Department vis-a-vis the United States Attorneys. While statute gives the Attorney General oversight authority over all United States Attorneys, the degree to which this authority is asserted varies. A centralized administration will give more control to the Justice Department in Washington, D.C. A decentralized administration gives more control to the United States Attorneys. Typically, Republican administrations, such as George W. Bush, prefer more centralized authority while Democratic administrations are more decentralized. Hamilton’s writing suggests a preference for more decentralization.
A preference for decentralization first appears when Hamilton discusses reforms for the Federal Bureau of Investigation. FBI reform is a top conservative priority. The overall goal is to lessen the FBI’s independence and influence. As part of that, Hamilton wants to “emphasize, fund, and reward field offices while shrinking headquarters staff.” (p551) While not detailing how to “value badges over bureaucracy,” Hamilton believes more attention should be focused on the resident agency field offices rather than FBI headquarters.
Hamilton’s desire for decentralization among federal prosecutors is more subtle. It appears in a section defined as additional essential reforms. Under the heading of proposed legislative changes for Assistant United States Attorneys, Hamilton writes, “To ensure that the department can attract and retail top legal talent away from Washington, D.C., the next conservative Administration should seek congressional reform of the pay scale used for Assistant United States Attorneys.” (p571) The reason for this is to “emphasize the important of the field’s work in achieving the department’s various missions.”
This pairs with the other main theme for the Justice Department: hiring appropriate personnel. Those serving in the Department, both in the professional and the political ranks, are one of the key impediments to what Hamilton envisions as proper federal law enforcement priorities. The political ranks are easily replaced with a new Administration. The professional ranks pose the greater concern. According to Hamilton, the liberal-minded assistant US Attorneys undermined previous conservative administrations by refusing to take legal positions in court. These frequently occurred in matters requiring constitutional interpretation, says Hamilton.
In the section of additional essential reforms, hiring in both the political and professional ranks appears. Hamilton advocates for filling all politically appointed positions, something, he notes, that did not happen under President Trump’s administration. By not filling the positions, Hamilton observed that there were not enough people “to stop bad things from happening through proper management or to promote the President’s agenda.” (p569) Not only must the current positions be filled but the next conservative administration must expand the number of political appointments. Complementing this is a thorough review of Justice Department hiring practices. Sparse on details, Hamilton only recommends, “All hiring committees associated with hiring for career positions across the department should be assessed for impartiality to ensure that individuals are hired based on merit, aptitude, and legal skill and not based on association with or membership in certain ideologically aligned groups or based on illegal considerations such as race, religion, or sex.” (p570) This statement is interesting as the last time such criteria were used was during President George W. Bush’s administration when certain religious beliefs were a prerequisite for hiring in some positions.
The final theme that emerges is one that Hamilton may not have intended. He claims that the Justice Department is not actively pursuing national security cases, particularly against China and Iran. Hamilton points to the ending of the Trump Administration “China Initiative” as how the Justice Department has ignored national security prosecutions. To see that the Justice Department regularly prosecutes national security cases, including those against China and Iran, one need only peruse back issues of Justice Briefs. At least once a month, the government brings cases related to China or Iran. In fact, just this past Friday, the Justice Department obtained a guilty plea from a Florida man who fraudulently obtained chemicals and diverted them to China. One does not need a label for a program in order to prosecute cases.
Hamilton makes a similar claim with immigration offenses. He claims that current Department activities fail to adequately prosecute immigration offenses. His basis for this is questionable as immigration-related offenses are, and have been for more than a decade, the most frequently prosecuted federal crime.
All three themes share a common trait. They are more ideologically and politically driven than need driven. They are policy choices based on a belief about what should be done. A different approach might focus on the most pressing problems. While this approach might also have a political component, it can also be evidence based by simply looking at the most frequently committed federal offenses.
With that said, it is not unusual for administrations from different political parties to adopt a politically based policy agenda, especially in terms of who serves in prosecutorial positions. Next week’s issue will explore this history in the context of one US Attorney’s office: the Southern District of New York.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!