The U.S. District Court for the District of Columbia and its chief judge will soon face a choice: whether or not to extend the tenure of interim U.S. Attorney for the District of Columbia Timothy Shea. Recent events have confirmed that there is only one way to restore public confidence in the fair and impartial administration of justice in the district: instead a veteran career prosecutor with no political entanglements must take over the interim role. The court and its chief judge may have a chance to make that happen as soon as the end of this month.
Shea began his tenure as interim U.S. attorney under inauspicious circumstances. The former U.S. Attorney, Jessie K. Liu, who had been nominated to a position in the Treasury Department, reportedly told her staff that she would remain until the confirmation was over, which is the standard practice. But Liu unexpectedly submitted her resignation as U.S. attorney on Jan. 29, 2020 with The New York Times reporting “she and Mr. Barr then agreed that she would leave early.” It is perhaps notable that, on the same day of her departure, the Justice Department retreated from its own stated position on the recommended sentence for former National Security Adviser Michael Flynn in a filing in the district court. Soon after Liu’s departure, reports emerged suggesting that she had clashed with DOJ’s political leadership because her office decided not to continue pursuing criminal charges against former acting FBI Director Andrew McCabe after a federal grand jury had declined to indict.
Rather than allow Liu’s first assistant to take over, as is typical in such situations, Attorney General William Barr instead chose to appoint Shea as interim U.S. attorney. At the time, Shea was serving as counselor to the attorney general, a political appointment in Barr’s immediate office, where he worked closely with Barr. By statute, Shea’s appointment by the attorney general, which was effective on Feb. 3, 2020, expires after 120 days, or in early June. The statute further provides that, if a nominee has not been confirmed to fill the vacancy by that point, it falls to the district court to appoint an interim U.S. attorney to serve until the vacancy is filled. This is the law the federal court in the Southern District of New York relied upon in 2018 to appoint Geoffrey Berman as interim U.S. Attorney, affirming Attorney General Jeff Session’s temporary appointment. But the district court is not bound by the attorney general’s selection; it has discretion over whom to appoint.
Both the facts surrounding Liu’s sudden departure and what transpired after Shea’s appointment raise grave concerns about the impartial administration of justice by the office that would be best addressed by appointing a qualified, veteran career prosecutor to take over the role. Shortly after Shea’s appointment, President Trump publicly criticized the harshness of the sentencing recommendation filed by the U.S. attorney’s office in the case of Roger Stone — an associate and ally of the president convicted of lying to Congress and obstructing a congressional investigation.
Soon thereafter, Shea’s office filed a supplemental sentencing memorandum arguing that the court should impose a more lenient sentence than was initially recommended. This recommendation was a stark departure both from the office’s prior position and from DOJ’s operative charging and sentencing policy, which disfavors sentence recommendations lower than the applicable federal sentencing guidelines range.
As a result of this sudden reversal, all four career prosecutors who had represented the government in its prosecution of Stone moved to withdraw from the case, and one resigned from the department altogether. At the same time, the president also abruptly withdrew his nomination of Liu (who had overseen the prosecution of Stone) to a position at the Treasury just days before her confirmation hearing was scheduled in the Senate. According to news reports, the president’s decision was due to Liu’s handling of the Stone and McCabe cases.
This course of events overwhelmingly suggests that the U.S. Attorney’s Office was subject to improper political pressure in the prosecution of an individual matter. More than 1,100 former DOJ prosecutors and officials from both political parties signed a letter condemning Trump and Barr’s political interference in the Stone matter and objecting to the department’s failure to comply with DOJ policy requiring its decisions “be impartial and insulated from political influence.” Separately, 60 former assistant U.S. attorneys who had served in the D.C. U.S. attorney’s office publicly urged Shea to take affirmative steps to resist political interference or influence from the president and attorney general.
Events since the Stone sentencing debacle only reinforce these concerns. Reports soon emerged that Barr had taken the exceptional step of directing another U.S. attorney to review the office’s prosecution of another close associate of the president, Michael Flynn.
This atypical external review culminated earlier this week with the unprecedented and stunning decision by Shea to file a motion to withdraw the criminal information to which Flynn already had pled guilty. The motion advanced a narrow, defense-friendly view of whether Flynn’s lies were “material” — an argument DOJ would never accept in an ordinary criminal case. Notably, no career prosecutors signed the motion, and the lead career prosecutor in the Flynn case withdrew from the case shortly before the motion was filed. Former federal prosecutors could recall no other instance in the history of the department where it moved to withdraw charges after the defendant entered a negotiated guilty plea and admitted to the charged facts.
Politically connected defendants being afforded special attention and accommodations that no ordinary federal criminal defendant could expect are extremely troubling. Politicization of our justice system is a grave danger to the functioning of our democracy and to ensuring impartial accountability through the rule of law.
Commentators have long noted that the ability of the attorney general to appoint interim U.S. attorneys, who have not been vetted and confirmed by the U.S. Senate, creates a risk of politicization of the investigations and prosecutions conducted by those offices. At a minimum, the events that have transpired here create at least the appearance that Barr’s interim U.S. attorney appointment was made to affect the handling of matters involving close associates and political allies of the president.
Because a statute limits the tenure of interim U.S. attorneys appointed by the attorney general, the district court has an opportunity to convey the importance of the impartial administration of justice. Even if the court believes Shea has acted competently and with integrity as interim U.S. attorney, the events surrounding his appointment and the ensuing highly unusual prosecutorial decisions made to benefit the president’s allies undermine public confidence in his leadership and in the office. It is critical that the court demonstrate a commitment to the impartial administration of justice by appointing a qualified, veteran career prosecutor to serve as interim U.S. attorney until a permanent replacement is confirmed by the Senate.