I’ve been gratified at just how much response and interest I’ve got to my proposal for a DOJ-in-Exile project. I’ve heard from so many people either wanting to volunteer their time or work for such a project or help get it off the ground that I haven’t even been able to respond to everyone yet. But I’m very encouraged by the interest. As I said yesterday, this isn’t something I am envisioning running. I don’t have the expertise and I’m already doing something. I’m trying to bring together interested people and potentially funders and thus hopefully play some role in bringing it into existence.
To help bring the idea into more focus, I thought I’d try to flesh out the concept.
1) The core work product has to be serious-minded, substantive and come from people who not only know the law but how prosecutors work. I explained in the first post the general civic value of such an enterprise. To have that value, it can’t traffic in hyperbole or go off half-cocked. The value stems from people across the political spectrum, as well as working lawyers, looking at the briefs or indictments-in-waiting and saying, “Okay, that’s real.” Of course, that doesn’t mean MAGA influencers have to give any thumbs up. What matters isn’t what people say publicly for effect but what they think and know privately. If you’re currently sharing classified information on insecure platforms or exfiltrating personal tax data out of IRS computer systems, I would want your lawyer to be able to look at these documents and tell you, “Sir, yeah, that could be a problem for you.” That level of quality and expertise is also the sine qua non for press pick up. That standard must be hit for it to become that kind of resource for reporters trying to understand the nature of what’s happening. That makes it pervasive in the broader political, legal and news discourse.
2) Even though the work product must past muster for people who understand the law, it must also be accessible and visually compelling for the wider public. That does not mean dumbing anything down. Only a subset of the public is going to have the time or interest to actually read through memos or indictments-in-waiting. But they should be there for those who want to dig deeper — well formatted, organized in a clear and compelling way, shareable across social platforms.
3) Specificity matters above all else. It’s not enough to say that there are widespread examples of misuse of statutorily protected private taxpayer data. No one cares about a general discussion of different laws or the equities implicated by them. You have to attach the violation of particular laws to specific individuals, with an enumeration of the available evidence and relevant statutes. The enterprise is inherently tentative since a DOJ-in-Exile lacks the investigative powers to subpoena documents, impanel grand juries and so forth. But quite a lot can be assembled by a careful review of quality journalism, facts revealed through litigation, interviews with witnesses and more. A more definitive and complete investigation would have to come from a DOJ under a future administration.
4) There are a number of reasons for such an exercise. The first is simply to illustrate the scale of law-breaking and public corruption taking place while the Department of Justice has called a hiatus on enforcing the law with respect to Republicans and those working at their behest. Occasional references to possible crimes toward the ends of articles have no staying power. A sliver of ice on hot summer pavement will melt in seconds. A one ton block of ice takes days. Scale and concentration have a powerful effect. Second is to provide a record for a future administration. Third is deterrence. People should know right now that impunity isn’t forever. They should know specifically the criminal infractions they’re committing, the available evidence and that they may eventually face a legal reckoning. The public should know.
Fourth is something more general. I’ve noted the disorienting, reality-distorting nature of this moment in history. Crimes are committed openly and appear to have no consequence. We are used to something different — a roughly predictable order of actions and reactions, an ascending scale of consequences. Public evidence of criminal conduct triggers investigations. Investigations may lead to prosecutions. Prosecutions may lead to conviction and punishment. Without that accustomed order of events, everything seems disjointed and untethered. Our minds try to impose some order or logic. If there are no consequences, maybe that means there are no crimes? Perhaps up is actually down?
Under instrument flight rules, pilots are taught to ignore all their physical sensations and perceptions of speed, attitude, up and down and only pay attention to the flight instruments. The instrument panel is reality. Simply because laws go unenforced doesn’t mean the law doesn’t exist. It doesn’t mean crimes aren’t being committed. A major point of a DOJ-in-Exile would be to serve as political society’s instrument panel in a period of public deception. Even when you can’t change the reality, it is still critical to know what the reality is. It’s the only path to changing it.
Please keep getting in touch. I’m relying on your input.