DOJ is breaking its own rules to litigate in the media

When the Justice Department targets high-profile individuals like former FBI Director James Comey and Fed Chair Jerome Powell, you’d think prosecutors would follow long-standing policy to achieve the best results. Think again.

Acting Attorney General Todd Blanche recently defended the indictment against Comey, who posted an image on Instagram depicting seashells arranged as the numbers "8647." The image, the DOJ alleges, was a threat to kill Donald Trump, who is the 47th U.S. president. Comey, however, deleted the post and says he was unaware of any violent association with the term "86," which is used in restaurants to indicate that an item is out of stock or that an order has been canceled.

Responding to what Fox News described as "widespread criticism" that the indictment fails to meet the legal standard of a "true threat," Blanche disclosed some previously unknown information. "This is not about a single Instagram post," he said, adding that intent is proved with "witnesses," "documents" and "materials. "“This is about a body of evidence that the grand jury collected over the series of about 11 months," Blanche said.

But the indictment against Comey only references the post and no other evidence. And sharing evidence beyond the four corners of an indictment violates the DOJ’s policy. These "extrajudicial" disclosures can taint the potential jury pool and thus, impede a defendant’s due process rights to a fair trial. They also put the indictment at risk of dismissal by the judge. Blanche’s willingness to take that chance provides further evidence that this DOJ is more about political messaging than about justice.

Even investigations that have not resulted in charges are being litigated in the media, contrary to DOJ norms.

Jeanine Pirro, the U.S. Attorney in the District of Columbia, has made it known that her office holds leverage over Powell with its on-again, off-again criminal investigation into the finances of the central bank’s new headquarters. Her statements fly in the face of DOJ policy to neither confirm nor deny even the existence of an investigation. Then, when Trump was pressuring Powell to lower interest rates, Pirro issued grand jury subpoenas, which a judge quashed as baseless. She announced the investigation was over when Trump sought Senate confirmation of Powell’s successor, Kevin Warsh. Once the Senate Banking Committee advanced the nomination, however, Pirro said that the probe could resume at any time.

One tell of this PR strategy came from Ed Martin, who was appointed to lead the DOJ’s "Weaponization Working Group" to investigate prior government officials who’d engaged in alleged "lawfare." Martin, a former surrogate for Trump from Missouri, explained his vision was to "name" and "shame" prior administration officials even if they could not be convicted of crimes. Though Martin has left that post to focus on serving as the president’s pardon attorney, it seems that the goal continues.

Yet another example is the recent fraud case against the Southern Poverty Law Center (SPLC). In it, the DOJ alleges that the organization lied to donors that it was dismantling hate groups, when, in fact, it was allegedly funding them. Rather than let the case speak for itself, Blanche has appeared on news programs to share additional allegations. At times, he has even cast himself as a witness, rather than a prosecutor.

Speaking on Fox News, Blanche responded to SPLC’s claims that it paid informants to infiltrate groups and then shared information with the FBI. "There’s no information that we have that suggests that the money they were paying to these informants and these members of these organizations, they then turned around and shared what they learned with law enforcement," he said. Again, his statements do not appear in the indictment itself. The SPLC has asked for a retraction and a gag order to prevent the DOJ from making more similar comments.

Of course, if the Justice Department is willing to violate these policies so blatantly, what other, less visible norms are they breaking? FBI Director Kash Patel recently disclosed that the grand jury heard evidence that Comey denied any intent to threaten Trump. Making that information public is a violation of grand jury secrecy rules. If true, however, it’s consistent with DOJ policy to share evidence of actual innocence with a grand jury.

But are federal prosecutors disclosing exculpatory information in every case? The practice is not legally mandated, but DOJ policy requires prosecutors to do so anyway. Similarly, are federal prosecutors complying with DOJ policy to provide grand jury witnesses with Miranda warnings, even though they’re not required if people are not in custody? These rules advance the view that the Justice Department’s mission is not simply to secure convictions but to see that justice is done.

In a famed 1940 speech at the Justice Department’s Great Hall, then-attorney general Robert Jackson spoke of "the spirit of fair play and decency that should animate the federal prosecutor." In Trump’s DOJ, that spirit is dead.

This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners. Barbara McQuade is a professor at the University of Michigan Law School, a former U.S. attorney and author of the forthcoming book, "The Fix: Saving America from the Corruption of a Mob-Style Government."