The Department of Justice’s special counsel, Jack Smith, is continuing his work toward possible criminal charges against former President Donald Trump. While I continue to doubt the viability of criminal charges based on Trump’s speech before the Jan. 6, 2021 riot on Capitol Hill, I have repeatedly said that the Mar-a-Lago matter could present a serious threat for Trump.
However, a recent (and little-reported) decision by the DOJ may complicate the final decision in the case with new concerns over a double standard in charging decisions.
Last week, the Justice Department announced that it would not charge Rachael Rollins, the U.S. Attorney for the District of Massachusetts, despite a referral from the DOJ’s Office of the Inspector General (OIG), which found evidence that she lied to investigators and may have improperly sought to influence an election. Rollins resigned from office on Friday.
The OIG released detailed findings against Rollins for allegedly seeking to influence a Suffolk County, Mass., district attorney election last year. She also was accused by the OIG of lying under oath during an investigation into the matter. The report states that “on December 16, 2022, pursuant to the Inspector General Act, 5 U.S.C. § 404(d), the OIG referred the false statements allegation to the Department for a prosecutive decision. On January 6, 2023, the Department informed the OIG that it declined prosecution.”
According to the OIG, Rollins sought to help Boston City Councilman Ricardo Arroyo in the Democratic primary for Suffolk’s district attorney by providing derogatory information to the Boston Globe and Boston Herald regarding his opponent, then-interim D.A. Kevin Hayden. The OIG said the information included “non-public, sensitive” DOJ material that Rollins acquired as a result of her federal position. The material suggested that Hayden was being investigated for public corruption.
The OIG further found that Rollins leaked more material after Arroyo lost to Hayden.
The OIG accused Rollins of violating a host of Standards of Ethical Conduct for Employees of the Executive Branch, including Section 2635.702 (the use “of public office for private gain”) and Section 2635.703 (the use “of nonpublic information”).
The most serious charge was that Rollins “falsely testified under oath … when she denied” providing the non-public information to the Herald reporter.
The investigation also found an array of other violations, including disregarding ethical warnings on political activities and soliciting expensive sports tickets.
What is most striking about the OIG report is that Rollins took some of these steps after barely being confirmed by the U.S. Senate because questions were raised over her judgment and partisanship. Rollins was confirmed in 2021 after Vice President Kamala Harris cast a tie-breaking vote due to all 50 Republican senators opposing her nomination. Every Democratic senator voted for her despite the concerns, including a video from January 2021 in which she threatened the arrest of reporters.
The DOJ’s declination of charges follows a similar pattern that suggests a higher threshold standard applied by prosecutors in charging one of their own.
Conversely, this is the same department that pursued figures like Trump national security adviser Michael Flynn for false or misleading comments made to agents about a meeting with Russian diplomats. The media heralded that case, and legal experts clamored for prosecution.
Now, the Justice Department is considering charges against Trump for false statements given to investigators on classified material at Mar-a-Lago. (He also faces other possible legal action, of course, including potential state charges in Georgia for election law violations.)
With Rollins, after an investigation found that she lied to investigators, the DOJ refused to file any charges at all. It is unclear what the DOJ felt was lacking in those findings or the underlying evidence. However, as shown by prior declinations — in cases like the contempt referral against former Attorney General Eric Holder, or the determination that former FBI Director James Comey removed FBI material and, through a friend, leaked it to the media — the Justice Department often seems to find insurmountable problems when asked to charge a fellow prosecutor or investigator
The Rollins case could be raised by the Trump team with other declined criminal cases as evidence of selective prosecution, if Trump is indicted. Although some in the media will cry “whataboutism,” charging decisions are made in the context of other cases to ensure consistency and to avoid selective prosecution. While state and city prosecutors like Alvin Bragg and Letitia James may run for office on promises of selectively targeting Trump, federal prosecutors usually aspire to a higher standard.
The DOJ already has a full plate of previously declined prosecutions outside of the DOJ, from the Holder and Comey cases to the perjury allegations leveled against Obama national intelligence director James Clapper, and more. It also will face a reckoning over the classified documents found in President Biden’s various offices and residences; those documents were clearly divided and moved repeatedly, and Biden’s lawyers — like Trump’s — completed searches only to have more documents discovered in these locations.
If the past is any indication, most of the media would not delve too deeply into such contradictions if Trump is charged. And selective prosecution complaints are notoriously difficult to litigate. Even if the Justice Department did not secure a favorable judge for such a case, most judges are leery of adjudicating claims of motivation and bias.
Attorney General Merrick Garland has long maintained he is above politics and treats the DOJ’s targets equally without regard to political pressure. For some of us who supported his confirmation, he seemingly has shrunk in stature in office — but he has not disappeared. He will have to make the final decision in conjunction with any recommendation by special counsel Smith. Episodes like the Rollins case will only complicate that decision.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.