Adherence to the rule of law is a cornerstone of American democracy, shaping the way power is exercised and checked. On a recent episode of Stanford Legal, co-host Professor Pam Karlan spoke with her Stanford Law School colleague David Sklansky, a former federal prosecutor and an expert on criminal justice, about recent developments that arguably are testing traditional safeguards—both within the Department of Justice and across the legal profession.
Their conversation covered the shifting role of prosecutors, executive orders aimed at major law firms, and what other recent actions by President Trump and his administration mean for the legal system’s independence. “I’m seeing a trashing of traditions that have long been cherished and safeguarded by people across the political spectrum,” says Sklansky, author of the recently published book “Criminal Justice in Divided America,” and co-director of the Stanford Criminal Justice Center.
The following Q&A is a shortened and edited version of the full podcast transcript, which can be found here.
Robert Jackson, who was a prosecutor at Nuremberg and a Supreme Court justice, gave a well known speech on the role of the prosecutor. How did you think about your role as a prosecutor when you first started prosecuting cases?
I was a federal prosecutor in Los Angeles for seven years. I think like pretty much everybody who becomes a federal prosecutor, I knew about Jackson’s speech because it gets drilled into federal prosecutors.
Jackson was the last justice of the Supreme Court who never graduated from law school. He became a lawyer through apprenticeship. He was the IRS Commissioner for a period during the Roosevelt administration. He was attorney general, then a Supreme Court justice and the chief prosecutor at Nuremberg. He gave this speech to the U.S. attorneys when he was attorney general. The speech is famous because Jackson stressed the great danger that lies in prosecutorial power. He said that prosecutors have the power to destroy lives in a way that’s unequal to almost any other public official. And the great danger, he said, is that prosecutors will exercise their power in an unprincipled way by trying to figure out people that they want to get, and then search the statute books to try to come up with some crime that they could charge them with. That’s long been viewed as the chief thing to fear about prosecutorial power.
When you were a prosecutor, what role did politics play in your decisions about which cases to bring or which cases not to bring?
Almost none. I was a federal prosecutor under Republican presidents and under a Democratic president, and it made a difference in the priorities of the office, but that was really at the margins. The main priorities of the office remained fairly constant from one administration to another. There was some reordering of priorities based on the priorities of the administration. What there never was, was any interference on political grounds in the handling of particular cases. And I worked on cases that involved possible targets who were closely related to one of the presidents under which I served. And there was never a whiff of a suggestion of any involvement from the White House at all, let alone the president, in the prosecutorial decisions we made, nor was there any suggestion in even the softest way from the higher levels of the Department of Justice, that we should think about political considerations in making charging decisions or in the way we handled the case.
When you look at what’s going on now at the Department of Justice, what are you seeing?
I’m seeing a trashing of traditions that have long been cherished and safeguarded by people across the political spectrum. This is an administration that’s done things that no administration in modern memory would’ve even contemplated doing in terms of politicizing the Department of Justice.
We should talk about the series of executive orders that the president has been issuing that target law firms, including some of the most powerful and largest law firms in the country.
At this point, there are half a dozen firms that have been targeted by the administration. In each case, the administration has been explicit that the firms are being targeted because of who they have employed as lawyers, because of the work that they’ve taken on through their pro bono programs, and because of the actions they’ve taken to increase diversity, equity, and inclusion in their workforce. And in each case, the executive orders threaten the law firms with barring all their lawyers from government buildings, barring them from government work, exercising a secondary boycott by reexamining government contracts with anybody who does any business with these law firms, and revoking security clearances for lawyers at the firms. Several of these firms have sued and have received temporary restraining orders against most provisions of these orders. Other firms have settled with the administration and it’s an ongoing story.
The first of these orders, which involved Covington and Burling, was targeting a Stanford Law School alumnus who works there, a lawyer named Peter Koski, who was a longtime civil servant in the public integrity section of the criminal division of the Department of Justice, where he prosecuted public corruption. He then went to Covington and Burling, where he is a partner and is representing Jack Smith, who was the special prosecutor appointed to look into President Trump’s involvement in breaches of security and January 6th.
Trump promised as a candidate that he would be out for vengeance if he was elected president, and he’s made good on that.
When we step back from all of this to think about the rule of law more generally, what does “the rule of law” really mean? We’re hearing that phrase an awful lot these days.
It means that you have rules, and that they’re rules of law. So “rules” means that you don’t just exercise power based on whim or ideology; you’re following rules. And those rules themselves are arrived at through a principle process of reasoned deliberation. You can think of the rule of law as the opposite of tyranny. It’s the opposite of having people exercise power just based on their own personal preferences or their own ideology.
Transcript
