D.C. U.S. Attorney nominee Ed Martin’s history demands a hearing

Senate Judiciary Republicans will forever be responsible for any abuses to come.

By Mimi Rocah

In what might be the understatement of the century, Senate Judiciary Committee Democrats have requested an unusual hearing for District of Columbia U.S. Attorney nominee, Ed Martin, saying that “Mr. Martin’s record merits heightened scrutiny by the Committee for the reasons outlined below.” If held, the hearing would be the first in nearly 40 years—but these are not ordinary times and Martin is not an ordinary nominee. In a shameful act of cowardice in a long list of cowardice, Republicans have already indicated they will decline and rely instead on written answers from Martin. Every senator who votes for Martin will be on the hook for his clearly predictable abuses of federal prosecutorial power and, worse, for the ramifications that will likely follow in the D.C. courts and beyond.

Many of us former federal prosecutors have been writing and speaking about the corruption of the DOJ by Attorney General Pam Baondi and her underlings, Deputy Attorney General Todd Blanche and Principal Associate Attorney General Emil Bove. It is not hyperbole to say that these three have allowed for and facilitated the fast and furious decimation of DOJ and its time-honored traditions and norms which—though not perfect—allowed for a largely non-partisan justice system that operated under a rule-of-law system. Perhaps no one, though, has done more to so blatantly take a sledge hammer to the ethical norms designed to protect defendants, attorneys working at DOJ, and the rule of law than Martin, who has been acting D.C. U.S. attorney since January. It is hard to catalogue all the ways in which Martin has done this, but we can start with his blatant conflict of interests, utter lack of experience, and embrace of a Nazi.

Other important and striking examples: firing career prosecutors involved in Jan. 6, 2021, cases; threatening to “chase … to the end of the Earth” not just people who had acted unlawfully but “simply unethically”—a threat that is beyond his authority to make and is itself unethical; sending threatening letters announcing vague “inquiries” into people he thinks have crossed Trump, including Senate Minority Leader Chuck Schumer (D-N.Y.) and Rep. Robert Garcia (D-Calif.); threatening Georgetown Law School over its DEI program without citing any legal principles; announcing his role as U.S. attorney primarily as one of “President Trump’s lawyers” fighting to “protect his leadership.” He has engaged in other ways that are clearly unbecoming of a federal prosecutor, including posts on social media—there are, for good reason, entire sections of the Department of Justice Manual dedicated to preventing this kind of public communication by U.S. attorneys and other DOJ employees. When Criminal Division Chief Denise Cheung resigned rather than carry out partisan orders for a baseless investigation of a Biden-era program, alumni from the D.C. U.S. Attorney's Office issued a strong statement opposing Martin’s nomination for U.S. Attorney because he has “butchered the position … turning it into a political arm of the current administration … in ways that typify authoritarian and indeed totalitarian regimes of the most notorious sort.” In the latest revelation, Pro Publica reported this week that Martin might have orchestrated an online campaign (with his involvement disguised) against a judge in a Missouri case in which he was a defendant.

It is against this backdrop that Democrats have asked for a hearing. Let that sink in: just a hearing. Martin’s nomination is a test of how much (if any) life is left in the Senate’s important constitutional role in ensuring adherence to the rule of law through its confirmation process. Even in his temporary role, he has proved to be the most openly politicizing and weaponizing figure in the most politicized and weaponizing department in our nation’s history. Justice Robert H. Jackson’s oft-cited speech when he was attorney general about the role of a prosecutor in upholding the fair administration of the rule of law the rule of law also talked about the importance of Senate consent for federal prosecutors: “Because of this immense power to strike at citizens, not with mere individual strength but with all the force of government itself, the post of federal district attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the Senate of the United States.”

There are indications that judges around the country, appointed by different political parties, are becoming more and more skeptical of blanket representations made by DOJ attorneys in federal court, including the Supreme Court. As I learned as a federal prosecutor early on, credibility is hard to earn and easy to lose, and DOJ, because of its recent evasiveness and use of what at least one judge called “pretextual” rationales in court, might be on a fast track to losing its credibility. This is not just bad for the DOJ attorneys making these arguments—it is bad for public safety and the future of cases in which the DOJ will need that hard-earned credibility in defending itself in suits, affirmative cases, and terrorism or violent crime cases in which it wants a court to detain defendants, for example. Courts must have assurance that they can rely on the good faith statements of government lawyers.

With Martin as the chief prosecutor of one of the largest and most consequential U.S. Attorney’s offices in the country, that simply will not happen. The Senate must consider this when deciding whether, in Justice Jackson’s words, it will give an “expression of confidence … in [Martin’s] character.” If the Senate confirms Martin, it will be a darker mark on an already dark chapter in Congress's checks and balances history. If it confirms him without even a hearing, darker yet. And the senators who abdicate their responsibility here will own any abuses and further loss of credibility for the Justice Department and all that that entails.

Mimi Rocah was the district attorney of Westchester County, New York, from 2021 to 2024 and was a federal prosecutor from 2001 to 2017.

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