Last week the US Department of Justice suffered another high-profile defection when career prosecutor Phillip Halpern publicly announced he’s resigning — actually, “fleeing” was the word he used — an institution that, under Attorney General William Barr, has traded its devotion to the rule of law for “slavish obedience to Donald Trump.”
In an op-ed in The San Diego Union-Tribune, the now former assistant US attorney for the Southern District of California cited a host of Barr’s transgressions as the reason he chose to end a career that spanned six presidential administrations and 19 attorneys general. Among them: “Barr’s parroting of the president’s wild and unsupported conspiracy theories regarding mail-in ballots (which have been contradicted by the president’s handpicked FBI director).”
Halpern’s courage of conviction is to be applauded, as is that of other former Justice Department officials who have spoken out against Barr’s actions. But not all DOJ officials want to walk away from their jobs. Nor should they have to choose between serving the American people and remaining loyal to an attorney general bent on turning the department into an arm of Trump’s campaign.
“US attorneys have enormous discretion if they choose to use it,” said Joyce Vance, former US attorney for the Northern District of Alabama, who is now a professor at the University of Alabama School of Law. “They might get fired, but they don’t have to do what they believe is wrong.”
It’s particularly crucial now: A DOJ policy change recently scuttled a longstanding directive against publicly initiating investigations that could interfere with an upcoming — or ongoing — election. The move, according to a ProPublica report, could lead to the public announcement of investigations into postal workers or military employees for alleged election fraud “before the polls close, even if those actions risk affecting the outcome of the election.”
If US attorneys launch such investigations — even if they ultimately lead to no charges or convictions — the damage will already have been done if “they circulate for just long enough to undercut confidence in the election,” Vance said.
But the new policy falls short of being a mandate. The choice of whether to open or announce federal investigations still lies with prosecutors in regional districts. And it is more important than ever that the nonpolitical career public servants in those roles around the country resist pressure, however forcefully exerted from Barr’s DOJ headquarters, to politicize the election in a way that may further erode Americans’ trust.
Barr has already made misleading statements — such as the false claim that “elections that have been held with mail have found substantial fraud and coercion” — that are serving to undercut faith in this year’s election and cause confusion among voters. Those claims echo similar falsehoods uttered by Trump, despite the fact that he has voted by mail himself on numerous occasions, including in this year’s Republican presidential primary.
Trump has already been using every imaginable avenue to discourage or halt mail-in voting, including legal challenges that seek to shorten the amount of time local election officials have to count mail-in ballots.
The reason for such challenges is clear — a recent Pew Research poll showed that 69 percent of voters who plan to cast an absentee or mail-in ballot support Biden, while only 27 percent plan to vote for Trump. By contrast, Trump is expected to get the better of the share of in-person Election Day ballots cast, 63 percent to 30 percent for Biden.
As an open letter in support of current Justice Department attorneys and agents —signed by a nonpartisan coalition of former prosecutors and judges, law professors, and practicing attorneys — states, the American people need DOJ officials to “stand by their oaths and the Department of Justice’s duty to do justice for the public by not participating in partisan misuse of the DOJ.”
Now more than ever, Justice Department officials must do all they can to protect democracy from those who threaten it, even — and perhaps especially — the attorney general of the United States.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.