The Relation of the Current DOJ Commotion to Loper Bright (2/15/25)

Readers have undoubtedly heard of the commotion about the DOJ order to the prosecutors in the U.S. Attorney’s Office in SDNY to dismiss the criminal case against NY Mayor Adams. There are many good accounts out there, but I link one to segue into a theme I have addressed before. Both sides of the commotion invoked then-Attorney General Robert H. Jackson, later Supreme Court Justice, to support their positions. Adam Liptak, A Rupture on the Right Over Prosecutors, Politics and the Rule of Law (New York Times 2/14/25), here.

Each side invoked Jackson’s classic speech on the role of the federal prosecutor. Robert H. Jackson, The Federal Prosecutor (Speech Delivered by Attorney General Jackson at the Second Annual Conference of United States Attorneys) (4/1/1940), from DOJ website here and from the Robert H. Jackson Center here. Jackson’s speech is generally considered the classic statement of the responsibilities and duties of federal prosecutors and particularly the local U.S. Attorneys.

It is ironic that both sides claimed support in Jackson’s speech. (Like Abraham Lincoln’s Second Inaugural equally ironic statement that “Both read the same Bible and pray to the same God and each invokes His aid against the other.”) I am familiar with Jackson’s speech from my days at DOJ Tax Division, and have just re-read it. My personal cut on the speech is that it favors the protesting Acting U.S. Attorney for SDNY,  Danielle R. Sassoon, rather than the President’s appointed DOJ hatchet man, Emil Bove with Pam Bondi in the background. Others can read the speech and reach their own conclusions.

The pre-eminent Jackson scholar is John Q. Barrett, here, a law professor and director of the Robert H. Jackson Center, here. The NYT article quotes Professor Barrett as follows:

John Q. Barrett, a law professor at St. John’s University who is writing a biography of Justice Jackson, said there was little doubt about how he [Jackson] would have viewed the Justice Department’s handling of the Adams case. “Pretty obviously he [Jackson] would be dismayed and appalled,” Professor Barrett said.

In other words, according to Barrett, Jackson would have sided with the Acting U.S. Attorney who resigned rather than dismiss the Adams case that she felt was not legally justified.

When I saw the Jackson quote and which side he would have been on, I was reminded of perhaps a similar current issue on which, in my opinion, Jackson would have had an opinion. That is Chief Justice Roberts' claim in  Loper Bright Ent. v. Raimondo, 603 U.S. ___, 144 S. Ct. 2244 (2024) that deference to agency interpretive regulations was not the law at the time of the APA. As I have written, in fact just prior to the APA in 1946 Justice Jackson said in two unanimous Supreme Court opinions that deference was the law. See John A. Townsend,  Loper Bright Is the Law But Poor Statutory Interpretation, available at SSRN here. Chief Justice Roberts just ignored Justice Jackson’s statements for a unanimous Supreme Court of robust deference because they did not fit his preferred outcome. In my opinion, the same characterization of the Chief Justice’s claim here applies to what Justice Jackson would think of Loper Bright’s rejection of deference at the enactment of the APA: Jackson would be “dismayed and appalled.”

Added 2/15/25 3:15pm:

A somewhat analogous episode to the Trump administration commotion with the U.S. Attorney's office in the current news is one from long ago where the new Reagan Administration directed the Solicitor General's Office to change its position in the Supreme Court in a tax case for political reasons. I copy and paste my discussion of that event from my discussion in the current working draft of the 2025 edition of my Federal Tax Procedure Book. This is from the book where I discuss the Solicitor General's Office and its role in tax litigation. I exclude the footnotes:

Although instances of overt political influence in the SG's Office are rare, one such instance is prominent in tax law history. I am going to highly summarize the events. In the early 1970s, the IRS began revoking the “charitable” tax-exempt status of organizations that practiced some forms of racial discrimination on the basis of claimed sincerely held religious beliefs to require such discrimination. The relevant Code section,§ 501(c)(3), conferred tax exempt status for organizations “organized and operated exclusively for religious, charitable, * * * or educational purposes.” The revocations were based upon a strong national policy against racial discrimination in education which, the IRS claimed, did not permit those general descriptions–”religious, charitable, * * * or educational purposes”–to include organizations that racially discriminated. The IRS position did not prevent the organizations from racially discriminating; rather, all it did was prevent them from qualifying for tax benefits.

Two educational organizations–Bob Jones University and Goldsboro Christian Schools–contested the IRS interpretation based on their claimed sincerely held religious beliefs requiring that they discriminate. The Fourth Circuit agreed with the IRS. The schools then petitioned for certiorari. The SG’s office responded to the petition by agreeing that the issue raised in the petition warranted Supreme Court review (called acquiescing in certiorari), but asserted that the Fourth Circuit’s holdings were correct. 

By the time the merits brief was to be filed, President Reagan had been elected with a substantial boost from the South where there were significant constituencies favoring some forms of racial discrimination, and segregated religious schools were their poster children. The President (or those under his influence) directed the SG’s office to disavow the position the Government had earlier asserted successfully in the court of appeals; that would have meant that the organizations qualified for tax exempt status even if they racially discriminated. Because the SG had recused himself on the case, the lot fell to the Deputy SG, a career lawyer, who felt strongly that the White House was wrong to reverse the position the Deputy SG asserted in acquiescing in certiorari that the Fourth Circuit’s holdings were correct. The Deputy SG agreed that the President was constitutionally entitled to direct the position taken by the Executive Branch, but agreed to put his name on the merits brief only if he was allowed to state in a footnote that he did not agree with the Administration’s position advocated in the brief. That action was gutsy and shows a remarkable degree of independence because the President could have fired him and replaced him with someone willing to do the President’s bidding without a distracting footnote slap at the blatant political move. (There would undoubtedly have been a number of political sycophants who would have volunteered; but the political flak from such conduct would have been serious, since it would have echoed President’s Nixon’s command to fire the Special Prosecutor Archibald Cox which the Attorney General and Deputy Attorney General resigned rather than perform with a resulting public firestorm that participated greatly in Nixon’s fall.) 

Perceiving the interference in the SG’s office, the Supreme Court invited a prominent D.C. attorney to file an amicus brief in support of the Fourth Circuit holdings that stripped the schools of their tax exempt statuses. So, President Reagan got his way on the nominal position in the SG’s brief but lost on the merits in the Supreme Court. President Reagan’s advisors certainly knew the position would fail, so the net effect was that President Reagan played to an important political constituency at the cost at least the appearance of impropriety in the SG’s Office and irritating the Supreme Court. In the political equation, President Reagan apparently concluded that was a reasonable price to pay. Fortunately, such episodes are rare, very rare.

The fallout from that episode was, in the future, to have a Deputy SG position filled by a political appointee who would presumably be more willing to sign a brief with a position that is the Administration’s position. I caveat to readers that good arguments can be made back and forth whether it was appropriate for the Deputy SG to insist on the disclaimer footnote in the Bob Jones case.

Whatever possibilities there were for such independence in the SG’s office in the past, it is doubtful that there will be such independence in a Trump politicized DOJ. I infer that all Supreme Court briefs will state the Administration’s position without any note of discord from the SG’s office.