As President-elect Donald Trump announces his prospective Cabinet nominations, The Conversation U.S. Politics Editor Jeff Inglis spoke with John E. Jones III about how the U.S. attorney general – the head law enforcement officer of the executive branch of government – deals with federal judges, who are part of the judiciary, a different branch of government.
Jones is the president of Dickinson College and a retired federal judge appointed by President George W. Bush and confirmed unanimously by the Senate in 2002. The transcript has been edited for clarity and brevity.
To what extent does the U.S. attorney general or their subordinates directly interact with federal judges?
Most federal judges rarely see the attorney general, if ever – although the attorney general does tend to visit different U.S. attorneys’ offices. But judges always see the U.S. attorney in their district.
There are 93 U.S. attorneys across the country, presidentially appointed and Senate-confirmed. They’re an extension of the attorney general, who sets broad policies for the U.S.’s law enforcement priorities. For example, if an attorney general wants to focus on prosecuting fentanyl distribution, that work is typically carried out by U.S. attorney offices nationwide.
Underneath the U.S. attorneys, who are political appointees, you have the careerists, assistant U.S. attorneys called “line prosecutors.” They present cases to grand juries and try those cases, and therefore also interact often with federal judges.
Are there actions or policies an attorney general can set that really affect federal judges around the country?
To me, an important example is where prosecutors seek to intercept electronic communications, formerly known simply as wiretaps.
Before 1968, you had people like FBI Director J. Edgar Hoover just wantonly tapping people’s phones, sometimes at the president’s behest. They didn’t need to get a warrant to wiretap someone. Wiretaps were dropped on people in the worst cases for prurient or political reasons. It was like the Wild West. It’s well established that Hoover tapped Martin Luther King Jr., for example, just looking to sully his reputation.
Then Congress passed the Wiretap Act of 1968, which includes rules about what is called a Title III intercept. As opposed to wiretaps, this law applies to all kinds of electronic surveillance, including texts.
The Title III law and Justice Department policies hold that if a local U.S. attorney or assistant U.S. attorney want to conduct electronic surveillance on a person, that application must go through what we refer to as “Main Justice” – the Justice Department offices in Washington – before it can be submitted for a federal judge to consider and approve or reject.
Not every prosecutorial decision or every investigative decision is vetted this way. But electronic surveillance is, because it involves the most sensitive personal information that individuals have. It’s an invasion, by judicial license, of the privacy rights of individuals.
So before a judge even sees an application, the professional career folks at Main Justice – who stay in their positions from presidential administration to presidential administration – review it according to the law and the highest investigatory standards.
When it’s presented to a judge, we know then that the application has already been carefully reviewed and authorized by Main Justice. We always had a certain sense of comfort. We would look for all the legal touchstones that were necessary to make sure that probable cause was established. But we knew that there was somebody who had put some eyes on this before and made sure it was legally sound. I never saw an application over my 19 years as a judge that was ill-brought or in bad faith. They’re very, very well done, typically.
You would see a packet of information that would be inches thick in support of the attempt to intercept somebody’s communications. If anything, I found the Department of Justice would almost go to excessive lengths to make sure that they made their case. They understood the gravity of it.
In an intercept, you’re literally listening into or reading what the speakers or the communicators believe is a confidential conversation, and for an extended period of time. Once the genie leaves the electronic bottle in an intercept, it’s much graver than evidence from a single search.
That’s an invasion of somebody’s right to privacy. There’s untoward amounts of information that you could gain to blackmail or get a political advantage over someone. That’s why there’s this additional process for obtaining judicial permission, to ensure the judiciary is a check against this power. It’s an area of super-close interaction between the central Justice Department and federal judges around the country.
Are there risks to that type of collaboration based on who the attorney general is?
Judges have had a fundamental degree of trust that generally, when they deal with the Department of Justice, there are adults in the room who are people of reasonably good judgment.
We have had some U.S. attorneys general with priorities that people may disagree with, but in the end, you want the person at the top to be professional and set standards that are ethical and in accord with the laws and the Constitution.
If that person isn’t professional, the Justice Department could become like a secret police agency. When I was a judge, I never failed to be amazed by the awesome power of prosecutors. They can, as has been said, get a grand jury to do almost anything. That formidable power can destroy lives if abused.
Do you think federal judges are willing to increase their scrutiny over Department of Justice actions, or if they feel they need to?
I really hate to typecast because people did that to me, and it turned out it wasn’t right. But there are Trump-appointed judges, particularly in the appellate courts, who are more conservative.
I still have confidence in the judiciary to do its job. I didn’t agree with the Supreme Court decision that Chief Justice John Roberts wrote, granting broad criminal immunity to presidents for official actions. I tended to agree more with Justice Amy Coney Barrett’s more limited approach in her concurrence. But it did not carry the day, and that’s the way the system works.
I worry that my former colleagues in the federal judiciary may need to be more vigilant than ever before. Regardless of which president appointed them, they cannot simply roll over if there are abuses of the system for retaliatory or political ends. I fervently hope they will be up to the task, without fear or favor. Our democracy will be at risk if they don’t.
John E. Jones III does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
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