U.S. attorney general’s professionalism can protect Americans’ privacy, says former federal judge

As President-elect Donald Trump announces his likely Cabinet nominations, Jeff Inglis, U.S. politics editor at The Conversation, spoke with John E. Jones III about how the U.S. attorney general — the executive branch’s top law enforcement official — interacts with federal judges bypasses. who are part of the judiciary, another branch of government.

Jones is the president of Dickinson College and a retired federal judge who was appointed by President George W. Bush and unanimously confirmed by the Senate in 2002. The minutes have been edited for clarity and brevity.

To what extent does the U.S. Attorney General or his subordinates interact directly with federal judges?

Most federal judges rarely if ever see the attorney general – although the attorney general does tend to visit various U.S. attorney’s offices. But judges always see the U.S. attorney in their district.

There are 93 U.S. attorneys across the country who are appointed by the President and confirmed by the Senate. They are an extension of the Attorney General, who sets broad guidelines for the United States’ law enforcement priorities. For example, if an attorney general wants to focus on prosecuting the distribution of fentanyl, that work is typically done by U.S. law firms across the country.

Among U.S. attorneys who are politically appointed, there are careerist assistant U.S. attorneys called “line prosecutors.” They present and try cases before grand juries and therefore interact frequently with federal judges.

Are there actions or policies that an attorney general can set that will have a real impact on federal judges across the country?

An example that is important to me is the prosecution’s attempt to intercept electronic communications, previously known simply as “wiretapping.”

Before 1968, there were people like FBI Director J. Edgar Hoover who would simply wantonly tap people’s phones, sometimes at the behest of the president. They didn’t need a warrant to wiretap someone. In the worst cases, people were wiretapped for prurient or political reasons. It was like the Wild West. It is well known that Hoover, for example, attacked Martin Luther King Jr. just to tarnish his reputation.

Then Congress passed the Wiretap Act of 1968, which sets out rules for so-called Title III interception. Unlike wiretapping, this law applies to all types of electronic surveillance, including text.

The Title III law and Department of Justice policy state that if a local U.S. attorney or assistant U.S. attorney wishes to conduct electronic surveillance of an individual, that request must go through what we call the “principal judicial system” – the Justice Department offices in Washington – before it can be presented to a federal judge for review and approval or rejection.

Not every public prosecutor’s decision or every investigative decision is reviewed in this way. However, electronic surveillance involves the most sensitive personal data that individuals have. It is an interference with the personal rights of the individual through court approval.

So before a judge even sees a motion, Main Justice professionals—who remain in their positions from presidential administration to presidential administration—review it according to the law and the highest investigative standards.

When the application is presented to a judge, we know that the application has already been carefully reviewed and approved by the Chief Justice. We always had a certain feeling of security. We would look for any legal touchstones necessary to ensure that probable cause has been established. But we knew there was someone who had seen this before and made sure it was legal. In my 19 years as a judge, I have never seen a motion that was poorly drafted or made in bad faith. Usually they are very, very well made.

You would see an inch-thick packet of information supporting an attempt to intercept another person’s communications. If anything, I found that the Justice Department would go to almost excessive lengths to ensure that it could make its case. They understood the gravity of the situation.

In an intercept conversation, you are literally listening to or reading what the speakers or communicators believe to be a confidential conversation over an extended period of time. Once the genie intercepts the electronic bottle, it is much more serious than the evidence of a single search.

This is an invasion of a person’s right to privacy. There is tons of information you could gain to blackmail someone or gain political advantage over someone. That is why there is this additional procedure for obtaining judicial permission to ensure that the judiciary is faced with this authority. It is an area of ​​extremely close collaboration between the central Justice Department and federal judges across the country.

Are there risks in this type of collaboration depending on who the Attorney General is?

Judges had fundamental confidence that generally when they negotiate with the Justice Department, there are adults in the room who have reasonably good judgment.

We’ve had some U.S. attorneys general with priorities that people may not agree with, but in the end you want the person at the top to be professional and set standards that are ethical and consistent with the law and the Constitution.

If this person is not professional, the Justice Department could become a kind of secret police. When I was a judge, I was always amazed at the incredible power of prosecutors. You can, as has been said, get a grand jury to do almost anything. This tremendous power can destroy lives if abused.

Do you think federal judges are willing to increase their oversight of Justice Department actions, or if they deem it necessary?

I really hate being typecast because people did that to me and it turned out not to be right. But there are Trump-appointed judges, particularly in the appeals courts, who are more conservative.

I still have faith in the judiciary that it is doing its job. I disagreed with the Supreme Court decision, written by Chief Justice John Roberts, granting presidents broad criminal immunity for official acts. I tended to agree with Judge Amy Coney Barrett’s more limited approach in her concurrence. But it didn’t catch on, and that’s how the system works.

I worry that my former colleagues in the federal judiciary will have to be more vigilant than ever before. Regardless of which president appointed them, they cannot easily change if the system is abused for retaliatory or political purposes. I sincerely hope that they will rise to the task, without fear or favor. If they don’t, our democracy is at risk.