Two government officials signed affidavits stating that they did not know that Cohen was writing a revealing book about President Donald Trump when asked to accept a condition that would prohibit him from relating to the media. Officials said they had copied the language used with another high-profile inmate and that there were no comments from senior Justice Department officials.
“How can I take any other inference that is not retaliation?” Hellerstein asked, adding that he had never seen the condition without means in 21 years on the bench. “It is also not feasible to believe that [the probation officer] I wasn’t asking for something like this because I had some instruction, “he added, suggesting that a senior official had intervened in the case.
Cohen’s lawyers did not present direct evidence that there had been 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 outspoken government rebuke is the latest in a series of high-profile cases in which judges have questioned the Justice Department’s honesty and the beginning of what worries former prosecutors is an erosion of integrity. of the institution.
In those cases, judges have focused on legal theories that appear to be biased to suit the president’s political interests.
Recently, judges have questioned the Justice Department’s positions in the cases of the prosecutions of Trump associates Michael Flynn and Roger Stone to disputes over national security policies and battles over freedom of expression to block the publication of books, such as one of former national security adviser John Bolton, who are critical of the administration.
Judges often challenge prosecutors for the power they wield, but some former prosecutors say Hellerstein’s ruling appears to be a sign of the times.
“I think things are different now,” said Jennifer Beidel, a Philadelphia white-collar defense attorney who stepped down as a prosecutor at the Manhattan federal 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 seemed to come from a place that seems particularly receptive 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 of the “trust deposit” that the department had built with the judiciary. “And we rely on that trust tank to do our job. It takes years to fill it, but it’s very easy to empty it, if it’s the truth once. We’ve seen a series of leaks come up in that tank,” said Honig. additional.
“The judiciary generally has a lot of trust in the Justice Department,” Honig said. “The judges are looking for federal prosecutors to give it directly to the media and be accurate. But if the institution’s leaders are constantly called, that hurts all prosecutors when they appear before a judge every day.”
The “trust deposit” idea was a favorite line of former FBI Director James Comey, who spoke about it often while serving as a high-ranking official, but he himself has criticized his leadership. Trump has pointed to Comey, whom he fired in 2017, and his subordinates as eroding law and order in the FBI. Federal district judges at the Foreign Intelligence Surveillance Court increased their scrutiny of attorneys after FBI officials under Comey made troublesome representations of surveillance applications in Russia’s initial 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 that this Department of Justice is used as a shield to protect friends and family from this administration and also as a sword to cut enemies of the administration. “
The effect can be cumulative.
Four months after the census case, attorneys for the U.S. Attorney’s Office for the Southern District of New York withdrew from the case and informed the judge that attorneys for the Justice Department in Washington will handle it in the future. No additional details were provided, but according to people familiar with the matter, there was disagreement between New York and Washington officials about the documents to be released to the states, prompting the departure of SDNY.
The move drew the attention of Furman, who noted: “There are dozens of highly qualified attorneys 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 attorneys for that Office withdrew from their representation of the accused in these cases,” he wrote.
Furman also called administration officials for what he said were inaccurate presentations. In the ruling blocking the addition of the citizenship issue, the judge convened a memorandum from Commerce Secretary Wilbur Ross and the testimony of Ross’ deputy chief of staff and policy director “misleading, if not false.”
The Supreme Court finally ruled that the Trump administration’s rationale for adding a citizenship question in 2020 was “pretexts,” that is, invented to hide the real reason. That led to more tangled litigation in court.
Cases in which judges have publicly called the Trump administration have accumulated in recent months.
Last month, when the Justice Department sued to stop the publication of Bolton’s book on the President, the judge questioned the honesty of the arguments.
“How do I decide if these kinds of people are really telling me the truth?” Judge Royce Lamberth asked about representations of the Trump administration. During the hearing, where intelligence officials swore 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 buddy.”
Open letters and extra questions
The abrupt dismissal of Manhattan federal prosecutor Geoffrey Berman and the other instances have led former prosecutors to worry about credibility in court, and to openly reject any damage the Justice Department has done.
“They are politicizing an office that has remained apolitical for more than 200 years, and they 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 of a series this year from former prosecutors and other executive branch officials warning of integrity in the judicial system and the president’s influence on attorney general William Barr. In recent months, several career prosecutors have not signed their names in legal summaries in the Stone and Flynn criminal cases after Barr intervened in those processes. The denials were significant gestures of protest in the legal profession and caused multiple judges to examine 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 evaluate prosecutors’ request to dismiss the charge of Flynn’s false statements instead of sealing the Department. of Justice.
Both cases made many former prosecutors uncomfortable with the lasting impact.
“Any damaged relationship may not affect the majority of cases between the Justice Department and judges, but it creates situations where judges can further question the motivations or representations of federal attorneys,” said Honig. “‘Are these Justice Department officials giving me direct treatment?’ the judges might wonder. “
Trump commuted Stone’s sentence days before he was presented to prison for obstructing Congress and threatening a witness.
Judge Reggie Walton in Washington criticized Barr’s approach to announcing the findings of the Mueller investigation in an opinion that required viewing an unedited version of the investigation’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 in general, and Attorney General Barr’s lack of frankness specifically, cast doubt on the credibility of Attorney General Barr and, in turn, the Department’s representation” in the case, Walton said.
CNN’s Geneva Sands contributed to this report.
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