Defending The Rule Of Law

Conduct a thorough review of all publicly available policies, investigations, and cases.

In a manner consistent with applicable law, prepare a plan to end immediately any policies, investigations, or cases that run contrary to law or Administration policies.

Ensure that upon the next President’s inauguration, appointees at the department obtain information about anything that was not learned before taking office and conduct the same analysis.

The DOJ’s actions over the course of the Biden Administration exhibit scorn for its stated mission: “to uphold the rule of law, to keep our country safe, and to pro- tect civil rights.”54 The Biden Administration’s unprecedented politicization and weaponization of the department therefore demand a comprehensive response from the next Administration.

Restoration of the department’s values of independence, impartiality, honesty, integrity, respect, and excellence must serve as first principles for its efforts on all fronts. Concretely, the DOJ must identify and address all individuals, policies, and directives that have fueled the destruction of these core values and the American people’s loss of trust in the department and its officials. The next Administration will need to exert significant energy to dismantle the two-tiered system of justice currently in place at the department while simultaneously applying the rule of law evenly and with neutrality.

Specific examples of department corruption, such as the Russia collusion hoax, will need to be tackled, exposed, and addressed head-on. This will require not just winning in a court of law, but also demonstrating culpability to the public and the media in a concrete and nonrefutable manner. These efforts will require commitment and willpower, but they will be essential to restoring the trust of the American people.

Promptly and Properly Eliminating Lawless Policies, Investigations, and Cases, Including All Existing Consent Decrees. Few things undermine the DOJ’s credibility more than brazenly partisan and ideologically driven prosecution of an Administration’s perceived political enemies, yet the department has readily indulged in such misadventures during the Biden Administration. Before even entering the Robert F. Kennedy building on January 20, 2025, the next Adminis- tration should:

An egregious example of the need for such a review is provided by the depart- ment’s use of the Freedom of Access to Clinic Entrances (FACE) Act55 to harass pro-life demonstrators while not pursuing similar investigations of shocking acts of violence committed against pro-life pregnancy resource centers.

On the morning of September 23, 2022, pro-life activist Mark Houck was arrested by more than 15 FBI agents at his home in Pennsylvania in front of his wife and small children. Agents came to his door with guns drawn to arrest the 48-year-old father of seven whose alleged crime involved a minor altercation with an activist who was harass- ing one of his children in front of an abortion clinic almost one year before Mr. Houck’s arrest by the FBI.56 Similarly, Paul Vaughn, a 55-year-old father of 11, was arrested at his home in Mt. Juliet, Tennessee, by armed FBI agents for allegedly participating in a peaceful protest at an abortion clinic one year earlier.57 These arrests stand in stark contrast to the department’s virtual silence on the wave of vandalism and violence directed at religiously affiliated institutions, includ- ing pregnancy resource centers, following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.58 The Catholic News Agency reported more than one hundred such incidents as of September 2022.59

By engaging in disparate and viewpoint-based enforcement of an already con- troversial law like the FACE Act against pro-life activists, the DOJ has needlessly undermined its credibility with law-abiding people of faith. The department should make every effort to uphold equal protection of the law and avoid politically moti- vated and viewpoint-based prosecutions. Specifically, it should:

Ensure that its review extends beyond ending the absurd double standards embodied in the ongoing campaign of FACE Act prosecutions and instead be a thorough and holistic review of all DOJ activities, including all consent degrees and settlement agreements currently in force.

Seek to terminate any unnecessary or outdated consent decree to which the United States is a party. Consider pursuing intervention in other matters where consent decrees or settlement agreements continue to bind parties years or decades after the fact.

As its review concludes, and consistent with applicable law, take appropriate action in all cases, including those on appeal. Enact policies and regulations that prohibit settlement payments to third parties.

Issue guidance to ensure that litigation decisions are consistent with the President’s agenda and the rule of law. Ensure that, consistent with this principle, the department’s leadership is prepared to impose appropriate disciplinary action as circumstances arise.

Affirming the Separation of Powers. Federal courts have jurisdiction to deal with a wide array of issues in law and equity in the United States. The increas- ingly aggressive posture of federal courts does not change one constitutionally immutable fact: All three branches of the federal government retain not just the right, but the obligation to assess constitutionality. It is this obligation that is the foundation of the separation of powers.

Engaging in Zealous Advocacy for and Defense of the Constitution and Lawful Administration Regulations and Policies. The Department of Jus- tice has the exclusive responsibility for the “conduct of litigation in which the United States, an agency, or officer thereof”60 is involved and has been charged with the supervision of “all litigation to which the United States, an agency, or officer thereof is a party.”61 However, in politically contentious cases, Assistant United States Attorneys and other line prosecutors during conservative Admin- istrations seek to influence outcomes of cases not because of any legal deficiency in the case or policy being defended, but by refusing to take certain positions, by writing public letters of protest, and by engaging in faux resignations from certain internal appointments. This can cause the department to take positions that are inconsistent with the interests of the President and his appointees in other places throughout the Administration.

While the supervision of litigation is a DOJ responsibility, the department falls under the direct supervision and control of the President of the United States as a component of the executive branch. Thus, and putting aside criminal prosecutions that can warrant different treatment, litigation decisions must be made consistent with the President’s agenda. This can force line attorneys to take uncomfortable positions in civil cases because those positions are more closely aligned with the President’s policy agenda.

Ultimately, the department will have to make tough calls as it manages its litiga- tion, but those calls must always be consistent with the President’s policy agenda and the rule of law. A line attorney should never either directly or indirectly pursue a policy agenda through litigation that is inconsistent with the agenda of his or her client agency or the President. The department should also be cognizant of any attempts to slow litigation and outlast the Administration to avoid finality. The next conservative Administration should therefore:

The next conservative Administration should embrace the Constitution and understand the obligation of the executive branch to use its independent resources and authorities to restrain the excesses of both the legislative and judicial branches. This will mean ensuring that the leadership of the Department of Justice and its components understand the separation of powers, that pushback among the branches is a positive feature and not a defect of our system, and that the federal system is strengthened, not weakened, by disagreement among the branches.

One example includes potentially seeking the overruling of Humphrey’s Exec- utor v. United States.62 This case approved so-called independent agencies whose directors are not removable by the President at will. The Supreme Court has chipped away at Humphrey’s Executor in cases like Seila Law v. Consumer Financial Protection Bureau,63 but the precedent remains. The next conservative Adminis- tration should formally take the position that Humphrey’s Executor violates the Constitution’s separation of powers.

Zealously Guarding Other Constitutional Protections. The next conserva- tive Administration must ensure that the DOJ zealously guards the constitutional rights of all Americans in all that it does. This extends not only to rights implicated in the department’s criminal activities, but to all rights enjoyed by the American people—such as the First Amendment. The department should reject any invi- tation to limit these fundamental promises based on the political ideology of the speech at issue.

A recent Supreme Court case illustrates the problems that arise when the DOJ takes a cramped interpretation of the First Amendment in service of a political ideology. In 303 Creative LLC v. Elenis, the department argued in favor of the government’s ability to coerce and compel what the lower courts all found to be pure speech.64 The oral argument made clear the department’s view that it was the viewpoint expressed that gave the government power to censor and compel speech.

During oral argument, the United States took the remarkable position that government can compel a Christian website designer to imagine, create, and publish a custom website celebrating same-sex marriage but cannot compel an LGBT person to design a similar website celebrating opposite-sex marriage.65 In the government’s view, declining to create the latter website was based on an objec- tion to the message, while the former was based on status rather than message, but this argument inevitably turns on the viewpoint expressed. It means that the government gets to decide which viewpoints are protected and which are not—a frightening and blatantly unconstitutional proposition.

Just as troubling, the government’s arguments against free speech are not lim- ited to the facts of 303 Creative. As Colorado admitted to the lower courts, all sorts of artists and speakers like speechwriters, photographers, and videographers can be compelled to design custom messages that violate their most fundamental convic- tions as long as it serves a certain viewpoint that the government wants to promote.

In fact, it was only a few years ago, in Masterpiece Cakeshop, that the govern- ment acknowledged the constitutional problems involved in compelling artists to speak government-favored messages. In that case, the United States acknowl- edged “a basic First Amendment principle that ‘freedom of speech prohibits the government from telling people what they must say.’”66 The department had it right when it argued that the government may not “compel the dissemination of its own preferred message,” because the First Amendment protects the “individual freedom of mind.”67 It was also correct when it argued that “[a]n artist cannot be forced to paint, a musician cannot be forced to play, and a poet cannot be forced to write.”68 The United States’ directly contrary position in 303 Creative is hard to explain based on anything other than its support for the message the State of Colorado was attempting to compel.

It is black letter law that no official “can prescribe what shall be orthodox…or force citizens to confess by word or act their faith therein.”69 Rather, the First Amendment places “the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity.”70 As the Supreme Court has noted, government officials have frequently sought to “coerce uniformity of sentiment in support of some end thought essential to their time and country.”71 In the face of such attempts to coerce orthodoxy, the DOJ should maintain its commitment to upholding the Constitution’s neutral principles of free speech, which commit the government “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”72