Adherence to the rule of law is a cornerstone of American democracy, shaping the way power is exercised and checked. On a recent episode of Stanford Legal, co-host Professor Pam Karlan spoke with her Stanford Law School colleague David Sklansky, a former federal prosecutor and an expert on criminal justice, about recent developments that arguably are testing traditional safeguards—both within the Department of Justice and across the legal profession.

Their conversation covered the shifting role of prosecutors, executive orders aimed at major law firms, and what other recent actions by President Trump and his administration mean for the legal system’s independence. “I’m seeing a trashing of traditions that have long been cherished and safeguarded by people across the political spectrum,” says Sklansky, author of the recently published book “Criminal Justice in Divided America,” and co-director of the Stanford Criminal Justice Center.

The following Q&A is a shortened and edited version of the full podcast transcript, which can be found here.

Robert Jackson, who was a prosecutor at Nuremberg and a Supreme Court justice, gave a well known speech on the role of the prosecutor. How did you think about your role as a prosecutor when you first started prosecuting cases?  

I was a federal prosecutor in Los Angeles for seven years. I think like pretty much everybody who becomes a federal prosecutor, I knew about Jackson’s speech because it gets drilled into federal prosecutors.

Jackson was the last justice of the Supreme Court who never graduated from law school. He became a lawyer through apprenticeship. He was the IRS Commissioner for a period during the Roosevelt administration. He was attorney general, then a Supreme Court justice and the chief prosecutor at Nuremberg. He gave this speech to the U.S. attorneys when he was attorney general. The speech is famous because Jackson stressed the great danger that lies in prosecutorial power. He said that prosecutors have the power to destroy lives in a way that’s unequal to almost any other public official. And the great danger, he said, is that prosecutors will exercise their power in an unprincipled way by trying to figure out people that they want to get, and then search the statute books to try to come up with some crime that they could charge them with. That’s long been viewed as the chief thing to fear about prosecutorial power.

When you were a prosecutor, what role did politics play in your decisions about which cases to bring or which cases not to bring?

Almost none. I was a federal prosecutor under Republican presidents and under a Democratic president, and it made a difference in the priorities of the office, but that was really at the margins. The main priorities of the office remained fairly constant from one administration to another. There was some reordering of priorities based on the priorities of the administration. What there never was, was any interference on political grounds in the handling of particular cases. And I worked on cases that involved possible targets who were closely related to one of the presidents under which I served. And there was never a whiff of a suggestion of any involvement from the White House at all, let alone the president, in the prosecutorial decisions we made, nor was there any suggestion in even the softest way from the higher levels of the Department of Justice, that we should think about political considerations in making charging decisions or in the way we handled the case.

When you look at what’s going on now at the Department of Justice, what are you seeing?

I’m seeing a trashing of traditions that have long been cherished and safeguarded by people across the political spectrum. This is an administration that’s done things that no administration in modern memory would’ve even contemplated doing in terms of politicizing the Department of Justice.

We should talk about the series of executive orders that the president has been issuing that target law firms, including some of the most powerful and largest law firms in the country.

At this point, there are half a dozen firms that have been targeted by the administration. In each case, the administration has been explicit that the firms are being targeted because of who they have employed as lawyers, because of the work that they’ve taken on through their pro bono programs, and because of the actions they’ve taken to increase diversity, equity, and inclusion in their workforce. And in each case, the executive orders threaten the law firms with barring all their lawyers from government buildings, barring them from government work, exercising a secondary boycott by reexamining government contracts with anybody who does any business with these law firms, and revoking security clearances for lawyers at the firms. Several of these firms have sued and have received temporary restraining orders against most provisions of these orders. Other firms have settled with the administration and it’s an ongoing story.

The first of these orders, which involved Covington and Burling, was targeting a Stanford Law School alumnus who works there, a lawyer named Peter Koski, who was a longtime civil servant in the public integrity section of the criminal division of the Department of Justice, where he prosecuted public corruption. He then went to Covington and Burling, where he is a partner and is representing Jack Smith, who was the special prosecutor appointed to look into President Trump’s involvement in breaches of security and January 6th.

Trump promised as a candidate that he would be out for vengeance if he was elected president, and he’s made good on that. 

When we step back from all of this to think about the rule of law more generally, what does “the rule of law” really mean? We’re hearing that phrase an awful lot these days.  

It means that you have rules, and that they’re rules of law. So “rules” means that you don’t just exercise power based on whim or ideology; you’re following rules. And those rules themselves are arrived at through a principle process of reasoned deliberation. You can think of the rule of law as the opposite of tyranny. It’s the opposite of having people exercise power just based on their own personal preferences or their own ideology.

Listen to the Podcast with David Sklansky

Where is the threat coming from now, exactly?

It’s from the White House, but I think that it’s a multi-pronged attack on the rule of law because it’s conceivable you could imagine a system that you might want to call the rule of law that didn’t involve courts and judges and lawyers, but we’ve never had a system like that.

Our system of the rule of law does depend on judges who are independent, on systems of adjudication that are insulated from politics, and on lawyers that responsibly and vigorously represent both sides in any dispute. So we’re seeing attacks on the lawyer piece of this, both through attacks on law firms, which seem to be aimed at eliminating the possibility that views that are opposed to the administration will be vigorously represented in the court. We’re seeing it in attacks on the Department of Justice as a non-political agency that operates through principles and procedures that are designed to avoid the threat that Robert Jackson warned of, of using prosecution simply as a political weapon. And we’re seeing it through attacks on the courts, and the attacks on the courts coming in a number of forms. First of all, there are attacks on judges. Donald Trump called for the impeachment of the judge who had ruled against him in the lawsuit challenging the deportation of a number of people to El Salvador.

And there have been calls to impeach or disqualify pretty much every other judge who rules against the administration in any case. There are also attacks on the courts through efforts to sideline the courts, to prevent them from having any ability to rule in particular cases, by rushing things through, by creating facts that are hard for courts later to correct.

Can you give an example of that?

The mass firing of all kinds of federal employees who are protected by civil service laws, including career prosecutors, is not just a threat to legal principles; it’s illegal. We have civil service laws that say you can’t fire people who are non-political employees without cause. And the administration has tried to flood the zone with so many firings and with such unannounced firings that it’s difficult for people to use the courts in an effort to stop it.

It’s the same thing with some of the actions that have been taken to deport people who the administration claims are gang members to El Salvador. The administration has now admitted that at least one of the people that they sent to a Salvadoran prison was mistakenly identified.

And we see these law firms pledging to do millions in pro bono work in favor of the president’s priorities.  

When you read the list of what the president’s priorities are, none of them seem that bad on their face: assisting veterans, for example. What’s chilling is the idea that firms should be directing their pro bono programs to cohere with the president’s personal preferences.

And it’s worth keeping in mind that part of the executive orders targeting these firms explained that these firms were targeted because of “destructive” work they had done in a pro bono capacity. So it’s, the administration is being very explicit about the fact that they think that law firms should be penalized if they represent clients that the administration views as advancing positions that they disagree with.

I think we have a rough ride ahead of us for the next couple years. The rule of law is facing threats that it’s never faced in this country in my lifetime, in the lifetime of anybody I know. And it’s going to need a lot of supporters and a lot of advocates and lawyers have to be at the front line of that.

Audience Question:  What do you think is going on with the lawyers who are behind these threats to the rule of law? 

I don’t know for sure, but my impression is that it’s a mixture. That there are some people who really do have a contempt for democracy and the rule of law, and think that the country’s become too soft, that we need a dictatorship, we need something like a Roman emperor. But I think that there are a lot of other people who are conflicted, who aren’t sure how far their loyalty should go, who may feel like if they stay inside the organization, if they stay in the Department of Justice, they stay in other government agencies with their lawyers, they can help moderate the worst impulses of the administration. And I think there are lawyers also who feel that there have been abuses on both sides.  

Audience Question: What long-term impacts do you think the politicization of the Department of Justice will have on criminal law and procedure?

I think it depends a lot on what happens over the next several years. The best-case scenario is that the Department of Justice is going to get hollowed out, but in four years we’ll have an administration that is dedicated to restoring and repairing the Department of Justice, and that could be an administration of either party. When I was a federal prosecutor, I heard stories from people who had been in the Department of Justice during the Nixon administration. They described those as the darkest days the department had ever experienced. 

What they described was not as bad as what we’re seeing now, but the aftermath of Nixon’s efforts to politicize the Department of Justice were efforts by the Ford administration and the Carter administration to restore and institutionalize the independence and professionalism of the Department of Justice. And the structures and rules that were built in those years under President Ford and then under President Carter created the nonpartisan professional Department of Justice that I was a part of and that Pam was a part of.

So, it is possible what we’re going through right now will lead in the long term to the creation of new systems and new processes that rededicate the Department of Justice and create new protections at the Department of Justice for the rule of law. That’s the best case.

It’s not even a liberal versus conservative issue. Some of the strongest, best criticisms of the administration’s policies with regard to the Department of Justice and the law firms have come from very conservative lawyers who write, for example, for The National Review.

There are people that I’ve disagreed strongly with for years and they now are some of the loudest voices criticizing the administration’s approach for exactly the reasons that I object to their approach.

David Sklansky teaches and writes about policing, prosecution, criminal law and the law of evidence. His newest book, “Criminal Justice in Divided America: Police, Punishment, and the Future of Our Democracy,” was published earlier this year by Harvard University Press. Sklansky is faculty co-director of the Stanford Criminal Justice Center, a faculty affiliate of Stanford’s Center for Comparative Studies in Race and Ethnicity, and a member of the American Law Institute. In 2017 he received the law school’s John Bingham Hurlbut Award for Excellence in Teaching. Before joining the faculty of Stanford Law School in 2014, Sklansky taught at U.C. Berkeley and UCLA. He won campus-wide teaching awards at both those institutions. Earlier he practiced labor law in Washington D.C. and served as a federal prosecutor in Los Angeles.