Since the fall, the US Department of Justice has been overhauling its manual for federal prosecutors.
In: Attorney General Jeff Sessions’ tough-on-crime policies. Out: A section titled “Need for Free Press and Public Trial.” References to the department’s work on racial gerrymandering are gone. Language about limits on prosecutorial power has been edited down.
The changes include new sections that underscore Sessions’ focus on religious liberty and the Trump administration’s efforts to crack down on government leaks — there is new language admonishing prosecutors not to share classified information and directing them to report contacts with the media.
Not all changes are substantive: Long paragraphs have been split up, outdated contacts lists have been updated, and citations to repealed laws have been removed.
The “US Attorneys’ Manual” is something of a misnomer. Federal prosecutors in US attorney offices across the country use it, but so do other Justice Department — often referred to as “Main Justice” — lawyers. The manual features high-level statements about department policies and priorities as well as practical guidance on every facet of legal work that comes through the department.
The last major update to the manual was in 1997. Deputy Attorney General Rod Rosenstein — the DOJ’s number two official and a veteran federal prosecutor — ordered the top-to-bottom review, according to department spokesperson Ian Prior. In a March speech announcing changes to the department’s policy for enforcing certain anti-corruption laws, Rosenstein lamented the difficulty prosecutors have keeping track of policy and procedure changes when they aren’t reflected in the manual.
Some of the recent changes were publicly announced. In January, for instance, the department said it was adding a section called “Respect for Religious Liberty,” directing prosecutors to alert senior officials about lawsuits filed against the US government “raising any significant question concerning religious liberty” and articulating “Principles of Religious Liberty” that Sessions laid out in an earlier memo.
Most changes haven’t been publicly announced, though, which is common practice, according to former DOJ officials who spoke with BuzzFeed News. US attorney offices have been notified of the significant changes so far, and notice will go out when the review is done, Prior said. The public version of the manual online notes when individual sections were last updated.
The Justice Department declined to comment on specific changes. In a statement to BuzzFeed News, Prior said the manual is meant to be a “quick and ready reference” for lawyers, not “an exhaustive list of constitutional rights, statutory law, regulatory law, or generalized principles of our legal system.”
“While sections of the USAM have changed over time, the last comprehensive review and update of the USAM occurred twenty years ago. During that time, policies have changed or become outdated, and leadership memos were issued without being incorporated into the USAM. As part of the effort to consolidate policies into a useful one-stop-shop of litigation-related documents for the Department, the Deputy Attorney General ordered a thorough, department wide review of the USAM,” Prior said. “The purpose of that review is to identify redundant sections and language, areas that required greater clarity, and any content that needed to be added to help Department attorneys perform core prosecutorial functions.”
The review is taking place while the Justice Department is still missing several Senate-confirmed officials, including heads of the Criminal Division, the Civil Division, the Civil Rights Division, and the Environment and Natural Resources Division. Nominees for those posts are waiting for a final vote in the Senate. Trump has yet to announce a nominee for associate attorney general, the department’s third-ranking official, following the February departure of Rachel Brand. Prior said that the review process has included career attorneys from across the department.
Sections of the manual that dealt with a variety of personnel and administrative issues, many of which are explained in other internal department documents or are included in federal statutes and regulations, were removed. Those sections included language about what happens when a US attorney spot is vacant, policies for securing and paying witnesses, and compliance with the Freedom of Information Act.
BuzzFeed News compared the latest version of the manual with earlier versions saved via the Internet Archive’s Wayback Machine.
Press freedom and contact with the media
The media contacts policy was updated in the manual in November. A subsection titled “Need for Free Press and Public Trial” was removed entirely. That section, which was included in versions of the manual at least as far back as 1988, according to DOJ archives, read as follows:
“Likewise, careful weight must be given in each case to the constitutional requirements of a free press and public trials as well as the right of the people in a constitutional democracy to have access to information about the conduct of law enforcement officers, prosecutors and courts, consistent with the individual rights of the accused. Further, recognition should be given to the needs of public safety, the apprehension of fugitives, and the rights of the public to be informed on matters that can affect enactment or enforcement of public laws or the development or change of public policy.”
The updated media contacts policy includes language about balancing “the right of the public to have access to information about the Department of Justice” with other factors in deciding whether to release information. Language in a different section about the department’s preference for open court proceedings hasn’t been changed since 2008.
New sections were added to the media contacts policy. One states that it is illegal to share classified information with someone who isn’t authorized to receive it. Another directs DOJ employees to report “any contact with a member of the media about a DOJ matter.” And another outlines protections for government whistleblowers, detailing the protections in place for prosecutors if they report concerns internally.
The additions to the media contacts policy don’t feature new information — the illegality of leaking classified information is well established, as are whistleblower protections. But taken together, they echo Sessions’ and, more broadly, the Trump administration’s efforts to tamp down government leakers.
At a press conference in August, Sessions denounced leaks and announced that the department was reviewing its policies for subpoenaing reporters. Those policies had been adopted under former attorney general Eric Holder after revelations that federal investigators had gathered emails and phone records from journalists.
The Holder-era subpoena policy hasn’t been changed in the manual to date.
Redistricting and racial gerrymandering
The part of the manual addressing the Justice Department’s civil rights work was revised in March. In a section discussing enforcement of the Voting Rights Act, the new version removes previous references to redistricting and racial gerrymandering.
The previous version stated: “The Voting Section defends from unjustified attack redistricting plans designed to provide minority voters fair opportunities to elect candidates of their choice and endeavors to achieve racially fair results where courts find, following Shaw v. Reno, 113 S.Ct. 286 (1993), and Johnson v. Miller, 115 S.Ct. 2475 (1995), that redistricting plans constitute unconstitutional racial gerrymanders.”
That section is gone from the new version, and there are no direct references to redistricting or racial gerrymandering. References in earlier versions of the manual to other types of voting rights issues that fall under the purview of the Civil Rights Division — from the bans on literacy tests and poll taxes to language access protections — are included in the new version.
The Justice Department was before the US Supreme Court last week on a gerrymandering case involving redistricting efforts in Texas. The administration sided with Texas in defending the state's maps; the Justice Department under Obama had taken the opposite position, arguing that the evidence showed Texas’s redistricting plans were aimed at diluting the voting strength of minority residents.
The updated manual refers generally to the Voting Rights Act's prohibition on practices that deny a citizen the right to vote based on race. A 2013 report by the Justice Department’s Office of the Inspector General found that the number of cases filed under Section 2 had steadily dropped since the 1990s, although the department under the Obama administration had cited Section 2, as well as the US Supreme Court case Johnson v. Miller referred to in the other deleted section, in arguing against Texas’s redistricting plans.
The manual’s list of laws enforced by the Civil Rights Division was also updated. It includes new references to laws about unfair employment practices against immigrants, religious land use protections, genetic nondiscrimination, and more. It no longer includes citations to several laws addressing nondiscrimination in federal grant programs, but the manual addresses enforcement of those laws elsewhere.
In a section listing the standards for when the department can file an amicus, or “friend of court” brief, in a civil rights case, the updated version includes a new potential factor: cases that “raise constitutional challenges of public importance under the First or Fourteenth Amendment of the United States Constitution,” underscoring Sessions’ interest in religious liberty issues and other speech-related issues under the First Amendment.
The updated version of the manual incorrectly referred to the title in the US Code that covers several voting rights laws cited. The department fixed that section after BuzzFeed News asked about it.
Principles of prosecution
Sections that reflected Holder-era charging policies were removed, consistent with a memo Sessions issued in May 2017 rescinding those policies. In a section on whether prosecutors should pursue the most serious charges possible, language was deleted about how decisions should be based on “an individualized assessment” of cases and that charging decisions should “fairly reflect the defendant’s criminal conduct.”
That section now reads: “Once the decision to prosecute has been made, the attorney for the government should charge and pursue the most serious, readily provable offenses. By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”
Under Sessions’ policy, prosecutors can still bring charges that aren’t the most serious ones possible, but that must be approved by a superior. The new version also removes Holder-era language that outlined circumstances when prosecutors should consider not pursuing charges that carry mandatory minimum sentences.
Several sentences that broadly referred to limits on prosecutors’ power were removed from entries that otherwise stayed largely intact.
In a section titled “Principles of Federal Prosecution,” the preface was edited in February to remove this sentence: “The manner in which Federal prosecutors exercise their decision-making authority has far-reaching implications, both in terms of justice and effectiveness in law enforcement and in terms of the consequences for individual citizens.”
That language was in a version of the manual saved by the Wayback Machine from 2015; earlier versions are not available. The 2015 version of the manual did not indicate that the section had been updated since the 1997 overhaul.
Farther down, this line was removed from a subsection about when prosecutors should pursue additional charges against a defendant: “The bringing of unnecessary charges not only complicates and prolongs trials, it constitutes an excessive — and potentially unfair — exercise of prosecutorial discretion.” This language was also in a version of the 2015 manual with no post-1997 update note.
In a subsection about entering into plea agreements when a defendant denies guilt, these sentences were taken out: “Such pleas are particularly undesirable when entered as part of an agreement with the government. Involvement by attorneys for the government in the inducement of guilty pleas by defendants who protest their innocence may create an appearance of prosecutorial overreaching.” A 2015 version of the manual indicated this language had been in place at least since 2006.
Steven Wasserman, vice president for policy of the National Association of Assistant US Attorneys and a federal prosecutor in Washington, DC, told BuzzFeed News that it wasn’t immediately clear to him why those portions were removed, but he didn’t think the deletions would alter how prosecutors do their jobs, since they dealt with concepts that are drilled into prosecutors.
“I can’t see a reason to remove it, but I didn’t think that removing it changed the gist of the policy,” he said. ●