Have the Democrats Missed An Opportunity?

A prosecutor in the White House may be exactly what America needs.

If you’ve been following the Trump presidency, the convictions of his close associates, and the House impeachment hearings, you may have noticed that the tone from the top of the Trump administration signals that the rule of law is out, and corruption is in.

And if you’ve been reading or watching the news for the last three years, you’ve noticed that some of the most persuasive voices—the voices that many Americans love to hear from and read about—are those of former criminal prosecutors. In fact, if there was an era in which prosecutors were at their peak popularity, this would be it. Why, then, have female prosecutors running for president gotten remarkably little traction?

Senator Kamala Harris, who was once among the top tier, was forced to suspend her candidacy last week after fundraising dried up. Senator Amy Klobuchar, meanwhile, is currently polling around four percent, according to the latest Monmouth national survey. That’s disappointing. Both candidates should have gotten far more love from Democrats precisely because of their past work as prosecutors.

After all, the intense interest in the Mueller probe revealed the extent to which Americans—and Democrats, in particular—admire prosecutors and recognize them as essential to upholding the rule of law and the health of our democracy. For more than two years, Democrats waited on the edges of their seats for news out of the Special Counsel’s office, where prosecutors worked to determine what role Russia, and its American enablers, played in the 2016 election. Prosecutors from Mueller’s team were ultimately responsible for obtaining the guilty verdicts in the Paul Manafort and Roger Stone criminal trials, as well as securing guilty pleas from Michael Cohen, George Papadapoulous, and others.

Indeed, other former prosecutors involved in the impeachment probe, such as Congressman Adam Schiff and Daniel Goldman, gained the respect and admiration of Democrats by bringing in and questioning credible, non-partisan witnesses to counter the Trump administration’s lies. At the same time, some of the most popular television pundits—Chuck Rosenberg, Preet Bharara, Joyce White Vance, Maya Wiley, Harry Litman, and Mimi Rocah, to name just a few—were all prosecutors in a past life.

The prosecutor worship from the last several years should have, at a minimum, kept Harris at the very top of the party’s presidential wish list. During some of the most fateful moments of the Trump administration, Democrats cheered Harris’s prosecutorial chops. Recall her sharp questioning of Brett Kavanaugh, Bill Barr, and Jeff Sessions. It wasn’t just the skill with which she interrogated Trump’s dangerous nominees for key positions, but her calm demeanor, to boot. Her remarkable talent was showcased again this week as she questioned DOJ Inspector General Michael Horowitz about his findings.

With the constant stream of outrageous Trump news inundating us all the time, it’s understandable that voters have a short memory. But our memories shouldn’t be so short that we gloss over the caliber of women like Harris and Klobuchar, who have proved themselves exceptional when it mattered most.

Simply put, prosecutors are what make the United States a nation of accountability. Prosecutors investigate and prosecute terrorists, child pornographers, fraudsters, thieves, and hackers. Even the most progressive of progressives surely realize that the malfeasance of Wall Street, drug company, and oil company executives would go unaddressed without prosecutors, as would racially motivated hate crimes. Yet at a time when Democrats are craving adherence to the rule of law, progressives seem to have simultaneously bought into the broader notion of prosecutors as anathema to liberal values.

In the New York Times, Lara Bazelon forcefully made the case that Harris was not the “progressive prosecutor” she depicted herself as. Still, she conceded at the end of her highly critical piece that the “the full picture” of Harris’s tenure was more complicated. Even worse, a writer for the Intercept argued that a prosecutor cannot be president, period.

This kind of oversimplification of prosecutorial work contributed, amongst several factors, to the failure of Harris’s campaign, despite her long record prosecuting criminals who pose some of the gravest threats to society, including serial rapists and financial scammers. Who would object to that? No one. Because that is the work of prosecutors—who operate within the confines of the criminal justice system.

Of course, the role of prosecutors can improve. So, too, can the laws they enforce. Prosecutors don’t always get it right, and gross disparities in our criminal justice system persist. African Americans and Hispanics, for instance, are convicted on drug charges far more frequently than their white counterparts. No doubt, overzealous prosecutors around the country share some of the responsibility for the mass incarceration from which we suffer. But it’s always a mistake to take the part for the whole. Each candidate with a prosecutorial background should be judged on his or her own merit.

For decades, though, Democrats have seemed more comfortable supporting prosecutors for legislative roles than for executive ones. A few democratic state governors have bucked this trend.

As legislators, senators and congressmen wield enormous power over the framing of our federal criminal laws and the trajectory of our country’s criminal justice reform efforts. Former prosecutors are a great fit for that work. One could plausibly argue that the people who best know how best to improve the laws are the people who have enforced them.

In 2019, however, some progressives and criminal justice reformers seem to have set an arbitrary glass ceiling for prosecutors like Harris and Klobuchar: the House and Senate are fine for them, but the White House is not. That’s a mistake. Surely, even the most ardent criminal justice reformers realize that having a prosecutor as president doesn’t mean that she would fill the White House and Cabinet with an army of fellow prosecutors, nor that she would transform us into a police state.

Rather, it’s more likely that a prosecutor in the Oval Office would present a golden opportunity to improve the very laws and policies that progressives loathe.

As a white woman, I am the first to admit that I haven’t experienced the effects of the criminal justice system’s disparities firsthand. In no way, do I mean to minimize the impacts these have had on communities of color. My hope is that our next president, working with a Democratic Congress, can implement meaningful reforms to reverse the damage that has been done.

But I can dispel some myths about prosecutors and speak to the strength of character of the hundreds I have worked with over my 18 years as a lawyer at the Department of Justice.

I am not a prosecutor, but most of my clients and friends over those years were. My role at DOJ involved counseling prosecutors on personnel matters, recruiting prosecutors, and improving the diversity of the agency’s prosecutors and other attorney hires. I also helped manage the day-to-day operations of the department when I served as deputy chief of staff to the deputy attorney general. Across these roles, I ultimately recruited hundreds of prosecutors to join the department.

From my purview, it’s long been clear that most prosecutors do not enter public service for wealth and status. They choose this work, and remain doing it, because they believe they are serving a greater good. Whether by investigating and prosecuting gangs, terrorists, cyber criminals, money launderers, or even corrupt government officials, prosecutors strive to thwart bad actors and keep us safe.

What Democrats have seen and admired over these last three years is what I saw up close for almost two decades. Prosecutors choose the profession because they believe, with their hearts and minds, that seeking justice is their calling. They willingly choose to forego lucrative law firm salaries to pursue it. And most importantly, they possess an inherent fire in their bellies to do what they believe is right.

Hopefully, Klobuchar, unlike Harris, will at least get her fair shake. Automatically rejecting a candidate whose career has been dedicated to making communities safer certainly does not square with democratic values.

At this precise moment in history, a prosecutor in the White House can set the needed tone from the top: that we are a nation of laws, that the rule of law remains vibrant, and that the Constitution wins. A prosecutor, after all, may be exactly what we need to clean up after this lawless president.

Support the Washington Monthly and get a FREE subscription

Julie Rodin Zebrak

Julie Rodin Zebrak is the Washington Monthly's director of digital strategy and outreach. She is a veteran attorney with nearly 20 years of experience at the Department of the Treasury and the Department of Justice, and the founder and CEO of Yes Moms Can.