Ethics worries

Justice Department briefing at White House fuels ethics worries

Ex-officials question discussion of specific prosecutions in anti-gang drive.

By JOSH GERSTEIN

A briefing a top Justice Department official and top Homeland Security official delivered at the White House Thursday on anti-gang efforts is drawing renewed warnings of blurred ethical lines between the White House and law enforcement.

Principal Associate Deputy Attorney General Rob Hur and Immigration and Customs Enforcement acting director Thomas Homan spoke from the press briefing room podium in a previously-unannounced addition to the not-so-regular White House briefing.

Hur and Homan were flanked by some compelling visuals: TV monitors showing images of tattoos belonging to MS-13 gang members, including enough of the face of one alleged gang participant to identify him.

The scene troubled several former Justice Department officials, including Hur's predecessor in the Obama administration, Matthew Axelrod. He said the move was particularly unwise at a time when Justice's independence seems to be under challenge by President Donald Trump's extraordinary and sustained public criticism of Attorney General Jeff Sessions.

"Voices from all corners have spoken out this week on why DOJ's independence is critical to maintaining the rule of law. Having a DOJ official brief from the White House podium was an unfortunate decision that sends a distressingly mixed message," said Axelrod, now a partner at the Linklaters law firm.

During the briefing Thursday, Hur and Homan both discussed specific ongoing criminal cases involving alleged gang-related violence, including murders.

"Earlier this year, members of this clique committed several high-profile murders in El Salvador. The shooter in these murders fled to the United States and is now in ICE custody pending immigration proceedings," Hur said. "The United States law enforcement and federal prosecutors recently targeted members of the same clique operating here in Maryland, charging 16 defendants with racketeering. Murder and attempted murder. The last of whom was sentenced this year to life imprisonment."

"Recently, two MS-13 members who were juveniles arrested as part of operation matador have been implicated in the quadruple homicide of four young adults in New York. An additional MS-13 arrest admitted to being complicit in homicides of two juvenile females," Homan said as he decried the violent tactics associated with the gang.

While top Justice Department officials have sometimes appeared at White House events to discuss policy issues in recent years, some ex-officials said it was a mistake for law enforcement officials to be discussing individual cases from a venue like the White House briefing room.

"The Department of Justice generally goes to great lengths to maintain arms length distance from the White House when it comes to when it comes to specific criminal or investigative matters," said William Yeomans, who worked at the Justice Department from 1978 to 2005. "Having people from DOJ who engage in ongoing operations go to the White House to speak from the podium probably suggests the traditional lines are not being observed."

Yeomans said the presentation would be less troubling if it had taken place at the Justice Department or the Department of Homeland Security.

"I do think the venue makes a difference," he said. "We are very sensitive about politicizing prosecutions in our democracy. Under rule of law, the worst thing that can happen is that people get prosecuted for political reasons."

A Justice Department spokeswoman during the Obama administration, Emily Pierce, added: "This is going to give the idea to someone or another that the White House is affecting enforcement in cases which is absolutely beyond the pale and wrong for them to do."

Justice Department spokeswoman Sarah Isgur Flores declined to respond to the criticism Thursday. However, when similar concerns were raised in June, she defended the propriety of Justice Department officials delivering their message at the White House.

"The Department of Justice is committed to making America safe again through fundamental law enforcement principles and will not hesitate to speak out in any venue about policies that endanger neighborhoods and communities around the country," Flores told NPR.

Some critics said the presentation was particularly worrisome because it appeared to be part of a deliberate campaign to get Sessions back into Trump's good graces.

After a Fox News interview Wednesday where incoming White House Communications Director Anthony Scaramucci called for a crackdown on leaks, Flores issued a statement heartily endorsing the voluble official's remarks. And much of Hur's statement Thursday seemed aimed at convincing not only the press corps, but also Trump himself, that Sessions is hard at work carrying out Trump's call to erdaciate MS-13 and other violent gangs populated in part by illegal immigrants.

While the briefing was ongoing Thursday afternoon, Trump appeared to join in by tweeting: "Big progress being made in ridding our country of MS-13 gang members and gang members in general. MAKE AMERICA SAFE AGAIN!"

Earlier in the day, in an unrelated case, Trump further blurred the lines between the White House and criminal prosecutions by taking to Twitter to argue that the media was not paying enough attention to the recent arrest of an aide to Rep. Debbie Wasserman-Schultz (D-Fla.) The aide, Imran Awan, pled not guilty to a bank fraud charge and is awaiting trial.

One danger of such statements is that defense attorneys will jump on them to argue that the case is being pursued for political reasons and that jurors could feel pressure to convict as a result of the president or White House's interest in the case.

In the Maryland MS-13 case Hur discussed, several defendants have pending appeals, several others are awaiting sentencing, and at least one remains a fugitive and could face a trial in the future.

"Obviously, there's the possibility of unfair prejudice there," said Yeomans, who served as chief Judiciary Committee counsel to Sen. Ted Kennedy (D-Mass.) from 2006 to 2009. "That is why presidents are very reluctant to talk about ongoing criminal matters."

A Justice Department official said Thursday that Hur was selected to speak because of his personal experience prosecuting gang cases. However, it is a certainty that if Hur's boss—Deputy Attorney General Rod Rosenstein—appeared in the White House briefing room, he would face a flurry of questions about his decision to appoint a special counsel to investigate connections between the Trump campaign and Russia, his role in the firing of FBI Director James Comey, and Trump's unusual public attacks on Rosenstein and Sessions.

In June, the Justice Department selected another frontline expert—U.S. Attorney for Utah John Huber—to speak at the White House podium about the problems allegedly caused by sanctuary city policies.

Sessions himself was a surprise speaker at a White House press briefing in March, where he delivered a similar message about the threat posed by sanctuary cities. He was traveling in El Salvador Thursday and is expected to remain there through Friday, even as Trump travels to New York to speak out about MS-13 violence.

In a Fox News interview Thursday, Sessions called the president's criticism "kind of hurtful."

A Justice Department official said ICE provided the photos for Thursday's briefing. An ICE official who asked not to be named could not identify the people in the photos and disputed that any of the pictures showed anyone's face.

"The photos did not show faces. The intent was not to disclose identities or even highlight those particular cases, but rather to show gang tattoos among those we’ve encountered, which Mr. Homan mentioned are among the many factors we consider when identifying gang members," said the official.

When White House Press Secretary Sarah Sanders took to the podium after Hur and Homan Thursday, she said she hoped senators considering health care legislation would work in the same spirit as those pursuing the gang crackdown.

"Just like the dedicated men and women of ICE and DOJ who are unquestionably producing results every day in these fights against vicious cartels, Senate Republicans now have an opportunity this evening to deliver on one of our biggest promises to the American people," she said.