On October 1, 2024, Zuckerman Spaeder partner Sara Alpert Lawson moderated a panel for the American Bar Association (“ABA”) titled “Prosecutorial Independence and the Rule of Law.” The panel consisted of three prosecutorial heavyweights: Fmr. Assistant Attorney General Leslie Caldwell, Fmr. Senator Doug Jones of Alabama, and Fmr. Deputy Attorney General of the United States Larry Thompson. It was an interesting discussion covering (1) prosecutorial independence and discretion and the rule of law; (2) the mission of the Department of Justice (“DOJ” or the “Department”); and (3) the impact on the rule of law from the Heritage Foundation’s Project 2025 proposed Mandate, as well as its impact if the proposed recommended restructuring of the DOJ and Federal Bureau of Investigation was carried out.
Below is some background on the panelists, as well as Lawson’s involvement in the ABA:
- Leslie Caldwell served as the Assistant Attorney General for the Criminal Division of the DOJ from 2014 to 2017 and previously served as an Assistant U.S. Attorney in the Eastern District of New York and the Northern District of California. Caldwell also worked in private practice, retiring from the partnership at Latham & Watkins in 2022.
- Senator Doug Jones served in the U.S. Senate from 2018 to 2021 and previously served as the U.S. Attorney for the Northern District of Alabama from 1997 to 2001. Senator Jones is currently Counsel with ArentFox Schiff and a Senior Distinguished Fellow with the Center for American Progress.
- Larry Thompson was the 30th Deputy Attorney General of the United States, the DOJ’s second-ranked official, from May 2001 to August 2003. He also served as U.S. Attorney for the Northern District of Georgia from 1982 to 1986, he was General Counsel and Senior Vice President of PepsiCo, and he is currently Of Counsel with Finch McCranie.
- Sara Alpert Lawson, a partner in Zuckerman Spaeder’s Baltimore office, was named to the ABA Criminal Justice Section Task Force for Prosecutorial Independence. The goal of the Task Force is to preserve and strengthen prosecutorial independence and enhance the American public’s understanding of the prosecutor’s critical role in maintaining the integrity of the criminal justice system. She became involved in issues concerning the independence and discretion of locally elected prosecutors when elected State Attorney, Andrew Warren, was suspended by Florida’s Governor.
Lawson kicked off the discussion by asking the panelists to define prosecutorial independence, prosecutorial discretion, and the rule of law. Each panelist emphasized that prosecutorial independence and prosecutorial discretion includes independence from politics. After each of the panelists provided examples of politically charged cases in which they were involved and how they maintained their prosecutorial independence in those cases, Lawson concluded the lessons from the panelists illustrated that, in such situations, to maintain both prosecutorial independence and the appearance of it, a prosecutor should work across the aisle, divorce himself or herself from anything that might compromise his or her independence, and/or bring in a trusted advisor to provide another lens or another perspective.
Lawson then turned to the Heritage Foundation’s paper titled Project 2025 Mandate for Leadership, which criticizes the DOJ as having become a bloated bureaucracy with a critical core of personnel perpetuating a radical liberal agenda, and which recommends overhauling the DOJ from top to bottom to instead advance a conservative agenda. In the panelists’ extensive experience within the Department of Justice, and leading it, such accusations are completely unfounded, and are incredibly damaging to the tens of thousands of hard-working public servants within the Department and the public’s confidence in the Department’s work. Without such confidence, the rule of law – that is, the public’s perception that justice is being pursued and laws are and should be governing – diminishes. The irony of Project 2025 is that it seeks to do with the Department what it already accuses the Department of doing, i.e., being political.
The panel then discussed some of the specific proposals to overhaul the Department of Justice and Federal Bureau of Investigation made in the Project 2025 Mandate, and the absurdity and lack of feasibility of such proposals, which evidence a lack of understanding about the Department’s mission and organization.
The panel concluded with takeaways for how we, as lawyers, can help preserve the rule of law. All of them urged to do your homework this political season and, whether you are a prosecutor or defense lawyer, to act in a professional manner.
It was a tremendously interesting and informative discussion. The webinar is available, here.
