By Nick Catoggio
Monday, February 09, 2026
Almost a year ago to the day, less than a month into the
president’s new term, I made
the case that federal prosecutors should resign en masse rather than be
party to the ruination of the Justice Department that was already unfolding
in Manhattan at the time. “Everybody out,” I demanded. “If that means the
DOJ loses 50 percent of its staff overnight and hundreds of criminal cases
grind to a halt, that’s what it means.”
We’re overdue for a progress report. How are Justice
Department lawyers handling their ethical duty to not become fixers for a mafia
organization?
Pretty well, actually!
They’re a ways away from hitting my 50 percent target,
but they’re getting there. The DOJ’s total workforce shrank by 8 percent
between November 2024 and November 2025 and by 14 percent among U.S. attorneys’
offices, which do most of the front-line work of trying criminals. “That was a
staggering one-year reduction unlike anything the department has seen in recent
memory,” the New
York Times reported this weekend.
In the past, the prospect of joining the Justice
Department and moving quickly up the ranks would have been catnip
to ambitious young lawyers. No more. “The number of applications is down
significantly from previous years,” sources told the Times, and “some of
those applying are generally not as qualified as those who sought the position
in the recent past.”
One former prosecutor who worked at the U.S. attorney’s
office in Los Angeles informed the paper that “candidates who expressed support
for administration policies were often moved forward for final interviews, even
those with weak academic records and little litigation experience.” Like every
other institution in the federal government, the DOJ is getting smaller,
dumber, less ethical, and more MAGA.
It’s a triumph
of democracy. Americans knew what they were getting when they voted to
reelect the president, and they’ve gotten it.
The state of the department was captured in miniature by another
Times story on Saturday. According to the paper, when federal
prosecutors in Minneapolis tried opening an investigation into the fatal
shooting of Renee Good by an ICE agent, their superiors in Washington
ordered them to stand down. Several bigwigs, including FBI Director Kash Patel,
allegedly “worried that pursuing a civil rights investigation … would
contradict President Trump’s claim that Ms. Good ‘violently, willfully, and
viciously ran over the ICE Officer’ who fired at her as she drove her vehicle.”
As in Manhattan a year ago, so too in Minnesota last
month: The DOJ’s duty to enforce the law and rectify injustices has yielded to
the White House’s sleazy political needs. Most cover-ups involve evidence being
collected and then quietly suppressed, but in Good’s case the highest law
enforcement officials in the country moved with alacrity to ensure the facts
went ungathered to begin with. They connived to ensure that not only would the
truth never be known, it would be unknowable.
Six prosecutors in the Minneapolis U.S. attorney’s office
quit in protest, leaving the bureau “severely understaffed and in crisis,” in
the Times’ words. That’s a good result, no?
The price of quitting.
No, it is not, some will say.
Start with the obvious reason, that a smaller, dumber DOJ
almost necessarily means some bad guys will go free who otherwise would have
landed in the clink. Minneapolis itself is a lesson. According to the Times,
the lawyers who resigned over the Renee Good cover-up were overseeing the
federal investigation into welfare fraud in Minnesota that inspired
the ICE crackdown in the capital in the first place. The office is now
scrambling to staff those cases, as well as “trials in the fatal attack on a
Minnesota state lawmaker and in a terrorism case, and investigations into
fentanyl trafficking.”
Eventually it will staff them, but instead of an
experienced litigator the lead prosecutor will be some yutz who got hired
because he’s convinced the 2020 election was rigged. Is a criminal more or less
likely to walk at trial with that caliber of intellect at the other table?
Never mind the guilty suspects, though. Innocents will
also suffer under a Trumpier DOJ.
They already have. The president and/or his henchmen have
successfully pressured the department into investigating political nemeses like
James Comey, Letitia James, and Jerome Powell, no doubt with plenty more to
come as the department becomes more yutz-ified and compliant. As bad as that
is, though, it’s far worse for people like detained immigrants who can’t mount
a gold-plated defense like Comey, James, and Powell can.
Take what happened last week when a lawyer from the
Department of Homeland Security tried explaining to a federal judge in
Minneapolis why “this
job sucks.” The attorney, Julie Le, had volunteered to help the local U.S.
attorney’s office with the crush of immigration cases it’s facing amid its
sudden manpower shortage. Upon arriving she discovered that ICE’s operations
are so chaotic that she can’t guarantee that the agency will comply when a
court lifts the conditions ICE has imposed on an immigrant’s release from
detention—even when she reaches out to its staff and badgers them to do so.
“It takes 10 e-mails to get a release condition to be
corrected,” she told
the judge at one point. “It take(s) two escalation(s) and a threat that I will
walk out for that to be corrected.” She claimed she’d gone as far as to
threaten putting the names of ICE officials on court documents so that they,
not only she, will be sanctioned when the agency ignores a ruling.
A less ethical lawyer might not be as diligent in
pestering DHS to follow court orders. That’s the sort of person who’ll be
riding herd on ICE if all of the conscientious attorneys at the DOJ resign to
protest the corruption at the top.
There’s a third problem with the “everybody out”
approach. What happens when a Democratic president eventually inherits a
Justice Department populated by MAGA yutzes?
He could, and probably will, fire them by the
truckload—but in that case, the department will be plagued for some period of
time by the same (or worse!) shorthandedness that’s plaguing it now. And if
you’re thinking that all of the prosecutors who quit during Trump’s term will
come flooding back in once he’s gone, you’re kidding yourself. Some will, but
others will have grown comfortable with the cushy lifestyle they’ve likely
earned for themselves in private practice.
And others will conclude that the DOJ, having lost its
ethical and intellectual luster, won’t regain enough of it to draw them back
even if a Democrat or post-Trump Republican leader resolves to rehabilitate the
agency. Which he might not: President Gavin Newsom might relish the precedent
his predecessor set for him and set about staffing the department with
left-wing hatchet men instead.
There’s no way around it: Talented, ethical federal
prosecutors inflict a cost on society when they quit. It’s just that the cost
of not quitting is steeper.
The price of staying.
Let’s talk deterrence. The worse the manpower crisis at
the DOJ gets, the more expensive it becomes for the White House to keep asking
the agency to behave unethically.
Donald Trump is nominally (I stress: nominally) a
law-and-order president, after all. If his Justice Department devolves into a
bumbling mess, with suspects repeatedly beating the rap in high-profile cases,
he’ll be humiliated. The average American won’t ponder the implications of
turnover at the agency; all they’ll know is that the “deep state” used to be
able to put criminals away but the supposedly new-and-improved version led by
Pam Bondi and Kash Patel cannot.
Each time federal prosecutors like the ones in
Minneapolis set a good ethical example by quitting, the administration is
forced to think that much carefully the next time it’s tempted to make a sleazy
request of an already understaffed U.S. attorney’s office. Will that request
set off a new cascade of resignations? If it does, what happens to cases in
that district?
Resigning in numbers is as close as DOJ lawyers can get
to a labor strike. If you want management to behave better, sometimes you need
to make the status quo painful.
Similarly, if you want the public to feel outraged about
management’s bad behavior, sometimes you need to do something bold to
communicate how unacceptably outrageous it is. A hypothetical to illustrate the
point: What if, like the prosecutors in Minneapolis, a meaningful percentage of
conservatives had quit the Republican Party in 2016 to protest Trump’s
nomination or in 2021 to protest his coup attempt?
Is there any doubt the GOP as an institution would be
better off morally and ideologically today?
It might have paid a price, losing the 2016 or 2024
election due to the protest faction refusing to turn out for Trump, but at
least we would be free from the “Republican
hostage crisis” that’s turned the modern right into the scummiest
mainstream political movement in at least a century. Postliberals conquered the
GOP by signaling they’d support the party only if they, and Trump, controlled
it; idiotic conservatives received that ransom demand and concluded, as they
always do, that being governed by Democrats is always the greater of any two
evils.
So instead of calling the bluff of postliberals and
threatening to boycott the party themselves, they agreed to be taken hostage.
Ten years later, Trumpism has been assimilated so thoroughly by the Reaganite
right that one of the president’s bitterest critics from the 2016 primary now
serves as his secretary of state and trusted toady. There’s no longer any
meaningful resistance among Republicans because conservatives who knew better
didn’t have the ethical courage to mount one.
To put it in the words of one of my editors, the Marco
Rubios of the right created a “veil of normalcy” for Trump’s politics that
convinced fellow partisans and a decisive chunk of the American center that
there was nothing so strange or loathsome about postliberalism that they should
consider it disqualifying.
Federal prosecutors who have quit in protest are refusing
to provide a veil of normalcy for the corruption of the DOJ. Their agency has
been taken hostage by postliberals—but instead of cooperating, like Marco
Rubio, they’re behaving like the many admirable Heritage Foundation employees
who resigned
to protest their leadership’s creepy
allegiance to Tucker Carlson. To stay put amid glaring institutional moral
decline would be to send the message that this is bad, but not so bad that
anyone should be ashamed of associating with it. Once that attitude takes
root, it’s a matter of time before actually, this isn’t bad sprouts. The
quitters at the DOJ, like their counterparts at Heritage, wanted no part of it.
The Justice Department will suffer from their loss, but
if that institution and the practice of federal law enforcement writ large are
to be rehabilitated someday, someone needs to defend the traditional ethical
alternative of chasing suspects “without fear or favor.” America can survive
the rotten conservative movement choosing to let itself be taken ransom by
postliberals but it can’t survive prosecutors doing the same. Everyone at the
department who
has quit, and will quit, deserves our thanks for refusing to let their own
hostage crisis play out.
The end of law.
Still, part of me wonders if I’m not playing into the
White House’s hands by advocating for DOJ resignations. What if the
diminishment of the agency becomes a pretext for the administration to stop
obeying the courts?
Julie Le’s nightmare with a thoroughly broken system
isn’t aberrant. The immense load of habeas cases from Trump’s
immigration crackdown “has demoralized prosecutors, outraged judges, exhausted
defense lawyers—and left many immigrants languishing in detention in violation
of court orders,” the
Times notes. One federal judge in Texas has more than 130 petitions
piled up in front of him and another 20-25 more flowing in each week. Le, who
came over from DHS to help the Minneapolis U.S. attorney’s office, was
overseeing 90 cases at one point despite having received almost no training on
how to handle them.
One immigration lawyer told the Times that a
client detained by ICE was sent to Texas after a judge had ordered him
sent home to Minnesota. “I feel so sorry for these lawyers because they are
caught, because they can’t control what their clients are doing,” he said of
government attorneys.
What happens if that problem expands due to mass
resignations and the DOJ starts breaking down? If a judge orders an immigrant
or prisoner released and prosecutors are too overwhelmed to ensure timely
compliance, what then?
The courts could sanction the attorney of record or the
federal agency that’s holding the person, I suppose, but that might not speed
things up depending upon how broken the Justice Department is. The president
would suddenly have a “valid” excuse for holding people unlawfully: “What can I
do? We’re trying to comply, but so many deep-state lawyers quit that it takes
forever for us to act on court orders now.”
Years ago, during the Glenn Beck chalkboard glory days on
Fox News, the grassroots right briefly became obsessed with the so-called Cloward-Piven
strategy. Proposed by two left-wing activists in the 1960s, the idea was to
overload the American welfare system with so many claims that the feds, unable
to cope, would have no choice but to replace it with universal basic income.
Tea Partiers glommed onto it because they believed that Obama-era Democrats
were a communist faction bent on destroying the state, and Cloward-Piven
pointed in that direction. To achieve an outcome it desired, the ruthless
American left would deliberately reduce the federal government to
administrative dysfunction so profound that it could no longer perform its
duties.
That’s … basically what’s happening with the immigration
system now thanks to Trump, no? He massively expanded ICE, degraded recruiting
standards, granted the agency de facto legal impunity in conducting operations,
and chased so
many ethical lawyers out of his administration that the justice system
can’t cope with all the claims of dubious detentions it’s receiving. The result
is that some immigrants are staying locked up even after they’ve been ordered
released—a pretty sweet outcome for an administration and political movement
whose most influential ideologue is
Stephen Miller, no?
A few months ago I wrote that no
one knows what the law is anymore. Increasingly, it seems, it’s also the
case that no one knows how it can be carried out.
That’s the best I can do to rebut my own point, then: The
fewer Justice Department lawyers there are, the more likely we are to encounter
a sort of fascist version of Cloward-Piven in which the president no longer
follows the law because the law is administratively unenforceable. If that’s
the logic that a current DOJ attorney is looking for as an excuse to stay on
the job, well, you’re welcome.
But have no doubt: It’s going to get harder ethically to
stay.
As much as I’d like to imagine the White House being
chastened by the number of resignations thus far, before the year is out the
president will almost certainly have enlisted the Justice Department in an
operation to interfere in the 2026 midterms on Republicans’ behalf. It’s
already begun. If you’re a federal prosecutor who’s stuck it out so far
through vindictive prosecutions, corrupt pardons of federal convicts, cover-ups
like the Good case, and the odd
constitutional perversion now and then, soon you’ll need to rationalize not
quitting when your employer conspires in election-tampering too.
Everyone’s red line is different. But the president will
reach yours eventually.
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