Is it time for The Office of Public Prosecutions?

In the age of Trumpism, it’s time to look how other countries ensure an independent Justice Department

During the Trump era, it’s rare that I agree with anything Alan Dershowitz says. The 81-year-old ‘TV’ lawyer has gone off the deep end it seems, especially when you consider his ridiculous performance during the recent impeachment trial.

But once in a while, he gets it right. A few nights ago on CNN, he was debating his former pupil, Jeffrey Toobin, concerning the recent intervention of Bill Barr into Roger Stone’s sentencing recommendation from federal prosecutors. Dershowitz, of course, first sided with Trump on the issue, saying that he did have the ‘legal’ right to intervene in that particular case. There was nothing in the law that says he couldn’t do it.

But then he also explained that it wasn’t right for him to do so. Because of the long understood norms and traditions established for over two centuries, the Justice Department must maintain a red line of independence from the President, especially as it pertains to criminal matters. Without that red line, we risk the sorts of presidential abuses our Founders warned us about.

However, we all know that this President doesn’t understand, nor does he care about such norms. He will stretch the Constitution to the breaking point if it serves his interest. Never before have we had a president act in this manner, although Richard Nixon came pretty close. And now, fresh off an impeachment acquittal from his cowardly sycophants in the Senate, he’s emboldened. He’s ready to seek revenge on anyone who gets in his way.

Presidents before Trump knew better. But now, we’ve got a guy in the oval office who flouts his authority like no other. And he’s got an Attorney General willing to do his bidding. Go after a political enemy? Sure, no problem. Intervene on behalf of long-time friends and advisors to the President? Absolutely. There was a time when both political parties would shutter in disbelief at what’s going on. Sadly, we do not have that luxury anymore.

But maybe we’re not going about this the right way. Perhaps there’s something more drastic we could do as a country that would prevent this kind of behavior from any future wannabe King of the United States. It might be time to look at what some other countries do, or are doing, safeguarding the rule of law.

In his debate with Toobin, Dershowitz mentioned something called The Office of the Director of Public Prosecutions (ODPP). My ears perked up because I’d never heard the term before. In the UK, Australia, Canada, and other countries, the red-line separating political and prosecutorial decisions is much more precise than here in the U.S. Dershowitz remarked that in a perfect world, we’d have the same kind of system here.

In Australia, the basic premise of the ODPP is that it is in everybody’s interest, including that of politicians, that a person independent of the political process should make what are often complicated and contentious decisions.

In 1990, The Director of Public Prosecutions Act passed with unanimous support in the Australian Parliament. In introducing the bill, the then-Attorney General noted the following:

“The Director of Public Prosecutions is an independent statutory office responsible for prosecuting criminal offenses in the name of the Crown. The director’s statutory independence ensures that prosecution decisions are perceived to be and are made according to legal considerations and are free from political influence.”

Similarly, the UK also utilizes a Director of Public Prosecutions (DPP). The DPP is the head of the Crown Prosecution Service, which is independent of the government and the police and prosecutes most criminal cases in England and Wales. The DPP is appointed by and responsible to the Attorney General, but again, remains independent of government.

Independent of government. It has a nice ring to it. In Trump world, though, independent of the White House is what’s needed. It’s way passed the time to take a look at how we can plug the holes in our Constitution—holes that this President continues to exploit for all of his personal narcissistic goals. Nothing is more critical than establishing at least some kind of separation between the Justice Department and the President of the United States. I think it might be too late, however.

Again, at least one political party seems to get it. In June 2019, Senators Sheldon Whitehouse, Kamala Harris, and Richard Blumenthal co-sponsored a piece of legislation called The Security from Political Interference in Justice Act, which would increase transparency to protect DOJ law enforcement decisions from political interference.

The bill would impose essential reporting requirements for contacts between the Justice Department and the White House about specific cases or investigations. As Senator Whitehouse said, “Politics has no place in the Department of Justice’s enforcement of the law. Never before have we seen a president so heedless of the Department’s traditions and spirit, and so singularly focused on his own political and personal self-interest at the expense of justice.”

Remember, the bill was introduced in 2019, and the Senator’s forceful words above were spoken at the same time. What’s going on now, in other words, isn’t anything new. What is new, however, is the degree to which this President is now circumventing the rule of law.

The bill sits somewhere near the confines of Mitch McConnell’s desk. It will not see the light of day, unfortunately, just like the nearly 300 or so passed by the Democratic House of Representatives.

These are dire times. It’s time to think outside the box. Perhaps a restructuring of the kind our friends in the UK and Australia have done is the way to go. As Senator Whitehouse said, we’ve never seen this kind of blatant disregard of our norms and traditions.

If we had cooperation from those on the other side of the aisle, we could come up with a bi-partisan solution. It’s not going to happen, though. The 2020 election is the last best hope we have. Most of us never thought we’d have a president like this. The norms practiced by previous presidents are no longer an option not to do something.

Because if we can have a Donald Trump win the presidency today, who’s to say we won’t have another one at some point? Yes, even a Democrat. After this President, those gaping holes in our Constitution will need to be filled. If he wins another term? God help us.