US Attorney Lelling’s principled prosecution of Judge Shelley Joseph
A federal grand jury has indicted a state district court judge for conspiring to help a federal fugitive evade arrest by directing that he be allowed to slip out the back door of a state courthouse. The fugitive had been arrested on drug charges after illegally entering the United States three times, having been deported twice. By any reasonable measure, if proven, the judge’s conduct was reckless and flagrantly disregarded her judicial oath. It also would be criminal. But by the measure of today’s reflexive ideology and politics, the alleged villain instead is the United States attorney seeking to hold the judge accountable for her actions.
As he did in his 15 years as a line prosecutor, US Attorney Andrew Lelling has consistently demonstrated discipline, rigor, and fairness in discharging his responsibilities. And as the recent college admissions and State Police prosecutions reflect, he has pursued cases regardless of privilege or status. He has spared no one, including those in positions of power and authority. In contrast to Judge Shelley Joseph, he is doing what his oath requires, and precisely what Massachusetts citizens expect.
I know firsthand from my experience as a federal prosecutor and senior Justice Department official that federal cases involving serious charges against a public official do not emerge fully formed from the head of the US attorney. A case like this would undergo an extensive and rigorous multilevel vetting process involving experienced career prosecutors, including line prosecutors, unit chiefs, and senior trial counsel — and finally the US attorney himself. Before seeking an indictment in this case, the US attorney would probably have negotiated with the judge’s own lawyers about resolving the case short of criminal charges.
But in response to Lelling’s principled stand, criticism from the legal and political elite has been partisan, indignant, and confused. Ironically, the tone and nature of these attacks resemble tactics Lelling’s critics decry when used by the president — harsh, personal, and ideologically driven, with too little regard for facts.
Certain of Lelling’s critics instruct us that indicting Judge Joseph is an “overreach,” and that it would have sufficed to simply refer her “mistake” to the state Commission on Judicial Conduct. This smacks of insularity and condescension. None of these critics jumped to defend the state troopers Lelling’s office indicted for an alleged overtime fraud scheme, or the recently indicted Springfield police officers alleged to have used blatantly excessive force.
In neither of these cases did critics argue that Lelling should have demurred to police department discipline rather than resort to a federal grand jury; nor did they lament that the indictments represented “unwarranted intrusions into state affairs.” So then, let’s call these arguments for what they really are: demands for special treatment.
These same critics also point to a lack of guidance for how state judges should handle immigration arrests in their courthouses — as if it’s an open question as to whether judges should help fugitives evade capture. We also are told that Judge Joseph was “new” to the bench, and so she just didn’t know any better. For my part, I choose not to condescend to a state trial judge. Judge Joseph is an experienced former prosecutor and defense attorney. She knew what she was doing. In fact, the indictment alleges that she lied when confronted by her bosses, frustrating internal efforts to investigate the incident and further breaching the public trust. These allegations underscore why the grand jury rather than a state administrative process was not only appropriate, but necessary, to get the truth and redress alleged criminal conduct that undermines our justice system at its core.
Finally, what Lelling understood, but many do not, is that federal agents have been arresting people in Massachusetts courthouses for decades. They did it at my behest when I was a federal prosecutor in Boston during the 1990s. In fact, these arrests better protect the public, the agents, and the defendants themselves, because they happen in secure environments instead of in neighborhoods or homes where guns, children, and other family members may be present.
It’s easy to talk about treating everyone equally under the law. But whether we mean it too often is based on what we think about the person being held accountable. In the current highly politicized environment, it’s rare to find public servants willing to enforce the law regardless of status, privilege, or political considerations.
We should be thankful that Andrew Lelling is one who will.
Ralph Boyd is the former US assistant attorney general for civil rights, a former assistant US attorney in the Boston office, and a former member of the Massachusetts Judicial Nominating Commission.