Dun-Dun

In the criminal justice system, the people are represented by two separate yet equally important groups: the police who investigate crime, and the district attorneys who prosecute the offenders.

~Introduction to the TV Franchise “Law and Order”

I need not remind anyone yesterday was the 25th anniversary of the most flagrant and deadly terrorist attack on American soil in the nation’s history. Much of the media coverage focused on the dichotomy of tragedy and selfless bravery, remembering those who died and those who responded. However, I was most intrigued by conversations about how 9/11 not only changed the national mood, but affected individual and institutional behavior.

In particular was a conversation between former secretaries of homeland security Jeh Johnson and Michael Chertoff on MS Now. The dialogue turned to the post-9/11 creation of the Department of Homeland Security, a logical response to the fact a terrorist attack in the United States by a foreign entity was no longer the sole purview of producers of Hollywood action movies. Both agreed that the new agency was a reasonable antidote to alleviate the widespread fear that 9/11 might not be a one-off, yet wondered if the department, in recent years, had gotten “off track” and needed a “reset,” especially in an era where domestic terrorism is perhaps an increasingly greater threat. These concerns are exacerbated by the priorities of the current administration.

Yet it was another headline that prompted this blog post. “Lead Prosecutor in Trump’s ‘Grand Conspiracy’ Case Abruptly Resigns.” (Source: New York Times) The “conspiracy” was based on Trump’s assertion that the U.S. intelligence community had created the “Russian hoax” in 2016 to derail his run for the presidency. Retired attorney and election denier Joseph diGenova was brought in after the original DOJ in-house prosecutor Maria Medetis Long was forced out “after telling her superiors that there was not sufficient evidence to bring charges against one of its first targets, John O. Brennan, a former C.I.A. director.”

Earlier in his investigation, following criticism for not moving fast enough, diGenova told the New York Post, “”If you want indictments where there’s no evidence, you have an ethical problem.” He tried to clean up the blowback from the White House by later clarifying that he believed there was evidence of a conspiracy. The problem was “some people want to get there a little faster than others–and you can’t do that.” Joe, you cannot have it both ways.

This is the Trump administration’s third failed attempt to keep this conspiracy drive alive. Do not forget John Durham’s investigation when then Attorney General Bill Barr appointed Durham special counsel to investigate whether the FBI probe of possible Russian interference in the 2016 election was politically motivated. Yet, no one should be surprised if litigator-in-chief Donald Trump finds a way to make a fourth or even fifth attempt to cross the goal line before time runs out on January 20, 2029. Hopefully, officials from the Michigan/Western Michigan football game will not be there to declare that there is still time when the game clock strikes 12:00 pm and Trump’s reign as defending champion is scheduled to expire.

All of which brings me back to the opening quote. Homeland Security is not the only federal agency that needs a reset. There is a much stronger argument to suggest the Department of Justice, as currently structured, also needs a do-over. It violates the very principle, repeated in the introduction to every episode, which explains why Dick Wolf’s franchise “Law and Order” is not called “Judge, Jury and Executioner.” What’s more, this situation is unique in the annals of U.S. law enforcement and jurisprudence.

How unique is it? Of the 50 states, only New Jersey and Montana, house their state police and district attorneys in the same agency. In its 2026 session, the New Jersey legislature is considering legislation that would bifurcate the two functions. And, according to a study by Columbia Law School professor Daniel Richman, “No major municipalities in the United States place the police and the district attorney’s office in the same department.” Often they reside at different levels of government. Local police departments with county or state prosecutors.

This separation of powers is a system of check and balances that should be evident to everyone. Even hired gun Joseph diGenova’s walked away from an investigation because he understood indictments without evidence are unethical. Unfortunately, diGenova is the rare bird in Trump’s orbit. We know Trump will find a more accommodating substitute now that diGenova is gone. Trump does it on a regular basis. Pam Bondi, a marginally corrupt AG, is replaced with a totally corrupt Todd Blanche. And when Kristi Noem does not violate the Fourth Amendment enough to accelerate mass deportations, Markwayne Mullen is waiting in the wings.

We should not have to codify morality and ethics for every occasion. The founding fathers believed a broader system of checks and balances was sufficient because our leaders would always be honorable men (and eventually honorable women.) Sadly, they were wrong. We have now observed, in real time, the consequences of their naivety.

The time has come to prevent an attorney general from directing the FBI to find evidence to convict an alleged felon even when the evidence totally exonerates the target. Just ask David Hearn, the Olympic canoeist charged with felony property destruction of the Lincoln Reflecting Pool. His attorney Norm Eisen is still in court arguing the case be dismissed “with prejudice” to keep DOJ from refiling charges against Hearn, something DOJ refuses to concede, even though the contractor has publicly admitted his company botched the job and there was NO vandalism.

It’s time Congress put an end to this nonsense. We need to hear that final “dun-dun,” signaling that justice is served at the conclusion of every episode of “Law and Order.”

For What It’s Worth,
Dr. ESP