The crusading federal prosecutor is a stickler for the rule of law — except, apparently, when it comes to those at the very top.
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On February 12th of this year, at the Union League’s annual Lincoln Day celebration in Philadelphia, Bill McSwain, the U.S. Attorney for Eastern Pennsylvania, gave the keynote address. McSwain started with how whenever he goes to Washington, he likes to take an early-morning run from the Army and Navy Club, where he stays. It’s not far from the White House, and before the sun is up, McSwain jogs to the Lincoln Memorial, where he invariably reads the Gettysburg Address inscribed on the wall — “the 10 greatest sentences ever spoken or written in the English language.” McSwain shared them now with his well-heeled audience: “Four-score and seven years ago, our fathers brought forth on this continent … ”
Then Bill McSwain got to Lincoln’s essential point: “So what did President Lincoln mean when he uttered those famous words — what was he really getting at? President Lincoln was addressing the beauty and the promise of the law. And he was addressing the will of the people. In America, it is the law that is the will of the people. The law is the manifestation of government ‘of the people, by the people, for the people.’ It is the law that gives birth to freedom.”
In Philadelphia, the rule of law is being ignored, McSwain said. He cited law-breaking City Councilmembers being given plum assignments, and DA Larry Krasner’s “deincarceration” agenda that McSwain believes lets dangerous criminals roam free, and the Mayor’s attempts to set up safe injection sites for heroin addicts. But the “most flagrant” example of lawlessness is how Jim Kenney has designated Philadelphia a “sanctuary city” for undocumented immigrants.
“What an amazing concept,” McSwain said, “one that would have elated those who opposed the desegregation of lunch counters in the Deep South, or those who told Rosa Parks to go to the back of the bus, or those who stood in the schoolhouse doorway to prevent African American children from entering. And this concept would have absolutely thrilled Southern slave owners. A sanctuary from federal law, where they could continue their practice of human bondage. … The secessionists who defied federal authority during our nation’s Civil War are gone but not forgotten. They did not fight in vain. No, their spirit lives on, right here in Philadelphia, in the Cradle of Liberty. Their spirit lives on in the hearts and minds of those who declare Philadelphia a ‘sanctuary city.’”
The speech got a standing ovation at the Union League, and a predictable reaction otherwise, from Kenney and Krasner and the media. This was not merely an overreach, McSwain’s critics railed; it was Trumpian in its outrageousness.
And it wasn’t his first public airing in that vein. Over his two and a half years as U.S. Attorney, McSwain has often hammered Krasner, in particular, for his progressive agenda that he claims favors lawbreakers over victims. Much of what he says comes across as strident, and often outraged, and certainly on the wrong side of history as a movement to address racism is unfolding in America.
Which raises a question: Who is this guy?
I talked to Bill McSwain for three hours, over two interviews. He speaks quietly, even gently. His agenda seems to spring from his beliefs. McSwain is disarming in his directness, and he comes across as quite likeable. There is an immediate disconnect, in other words, between the public posturing and the person.
The first order of business is to wonder whether McSwain actually believes what he says, or — as Larry Krasner and others would have it — if he’s doing the President’s bidding, as well as whether he’s tone-deaf to what’s happening in the country and his city. We’ll get to those things. But there’s another, even more significant problem.
Let’s assume that next month, Donald Trump loses his bid for reelection. If that happens, Bill McSwain says, he’ll resign; U.S. Attorneys generally get swept out by the opposing party’s new administration. Most observers expect him to run for something — maybe the Senate in 2022, if Senator Pat Toomey runs for governor. But regardless of his future, the path McSwain is going down now, the sort of noise he’s making about the rule of law being at grave risk in this city, is telling us something important as we hold our collective breath over this election.
Donald Trump might be leaving the White House. That doesn’t mean we’ll be entering a post-Trumpian world.
When Bill McSwain was 24 years old, not long out of Yale, working as an investment banker at Alex. Brown & Sons in Baltimore, he took a sudden turn: He joined the Marines. To say this was an unusual career move for an over-the-top-ambitious young man heading toward getting rich is an understatement.
“I didn’t have anybody steering me that way,” McSwain says of his abrupt turn; there were no military people in his family. “But I had always been patriotic and felt appreciation for being an American and just decided that I was going to put my money where my mouth was and do some sort of service. I gravitated towards the biggest physical challenge I could find, which I thought would be the Marine Corps infantry.”
McSwain served four years between the Gulf and Iraq wars, as a sniper platoon commander. The closest he got to real action was in the Persian Gulf, giving cover to Navy SEALs as they were about to board a ship in pursuit of Imad Mughniyeh, the most wanted terrorist in the world. The mission was aborted, likely because of shaky intelligence, which was a huge disappointment, McSwain says: “When you’re a Marine in an active Marine infantry unit, the only thing you want to do is be in combat.”
But McSwain got what he really wanted from his stint in the Marines: lessons on leadership and accountability, and a code to live by. “The Marine Corps stresses moral courage, doing the right things even if you feel pressure maybe to do something else,” he says. “And I’ll always do the right thing, even though nobody’s watching.”
That belief — that he always comes up aces in his own moral ledger — would be highly useful for what was to come.
Post-Marines, McSwain’s path was clear; he entered Harvard Law School. “I wanted to be a prosecutor, and I wanted to serve my country in a different way,” he says. “And I was hoping that someday I could be a federal prosecutor.”
He’d spend three years as assistant U.S. Attorney under Pat Meehan and better than a decade in private practice at Drinker, defending mostly white-collar clients. He’d take on an infamous pro bono case, defending the Philadelphia Boy Scouts in 2010 when they were threatened with eviction from a city-owned property because of their anti-gay membership policy. McSwain argued that the Scouts’ constitutional rights as a private organization were being violated, and he won.
The law is lord and master in McSwain’s world. When I wonder why he’s opposed to safe injection sites as a means of combating the city’s horrific heroin epidemic, he swats away the notion that his personal views are relevant: “I’m opposed to safe injection sites because I believe they’re illegal. And I took an oath to enforce the law. And I don’t believe that something that I consider to be illegal should occur under our nose. That’s where it sort of begins and ends.”
Larry Krasner has accused Bill McSwain of carrying Donald Trump’s water. (Indeed, the President attacked Krasner specifically after McSwain spent months making his opinion about the DA widely known.) When I mention Trump, McSwain bristles. “I have never talked to the President,” he says. He insists that his work is not, in any way, being directed by Donald Trump.
But the rule of law now has a particularly charged meaning, of course, and I ask McSwain if anything has changed in his thinking in light of George Floyd’s murder in Minneapolis in May.
“I think it’s made everybody sort of take stock of what they believe out of their values and take stock of what they want their country to stand for,” he says. “To the extent that there are people out there who want to destroy the system, they want to break the system, and they think it’s a corrupt system at its core: I completely disagree with those people. I think they’re ignorant or uninformed, and they’re a very destructive, poisonous influence on our society.”
McSwain’s “taking stock” has a particular cast. He doesn’t talk about the opportunity to address, say, racism in policing. (He has gone out of his way, in fact, to defend Philadelphia’s police.) Instead, McSwain has doubled down: What others see as opportunity, he sees as risk. The system — the rule of law — must prevail.
And in Philadelphia, he’s determined that it will. “I would say that in some ways,” McSwain says, “there’s a battle going on for the soul of the city.”
I think Bill McSwain is a true believer — that he believes what he’s saying and doing — and I also think he has to behave the way he is, has to loudly proclaim those beliefs. If, that is, he’s running for something.
It’s both things: McSwain is on a righteous crusade, and he wants to have a future post-Trump. Which often has his public posturing coming off as a less-unhinged version of the President. And that doesn’t portend well for our politics going forward, even without Donald Trump in office.
Consider: This moment has given McSwain a golden opportunity to raise his profile, to prepare for the next step. To that end, given that the murder rate in the city has jumped, he launched a campaign in July to aggressively prosecute those “who terrorize our communities with the illegal use of guns,” complete with six billboards (four in Philly, one in Lancaster and one in Allentown) with his picture and the message GUN CRIME = FED TIME. NO PAROLE, EVERY TIME.
No one can remember any other U.S. Attorney going public in such a self-aggrandizing way — “It’s necessary to put a face on the message,” McSwain explains — and that, coupled with his various pro-rule-of-law pronouncements over the past two years, makes it appear he is pushing hard for his next step.
If he has a run for the Senate in mind, McSwain needs two things: name recognition, and to deliver the message across the state that, as political consultant J.J. Balaban puts it, “I was in the belly of the beast” — i.e., Philadelphia — “and I stood up against liberalism as U.S. Attorney.” His gun initiative is safe with potential supporters, since it doesn’t intrude on anybody’s Second Amendment rights and sends a message to McSwain’s potential constituewancy about whom he’s targeting: Black men. Bill McSwain is preparing for a post-Trump world in a manner befitting Trump.
And there’s an immediate, terrible cost to what his gun initiative won’t accomplish. Retired Common Pleas judge Ben Lerner was active in an anti-gun campaign seven years ago, centered in South Philly, that required cooperation among the U.S. Attorney’s office, the DA and other agencies to find the leaders of gangs and make an offer: Law enforcement would help gang members with education, job training and social services as long as gun violence ceased among their fellow gang members. Otherwise, law enforcement would come after them much more aggressively, with higher bail, stiffer jail sentences and so forth. It was a classic carrot-and-stick gambit, and it worked: Shootings fell by 35 percent compared with the previous two years. And it worked because of cooperation across agencies — exactly what’s missing now.
Any solution today to gun violence in the city, Lerner says, is hamstrung by “this pissing match between McSwain and Krasner. And billboards are not going to do very much.” Not to mention that locking up young Black men without a strong attempt to address what has gone wrong in their lives is inhumane and ineffective policy.
Looking forward, Pat Meehan, Bill McSwain’s old boss in the U.S. Attorney’s office, thinks back, remembering the rise of the Tea Party and how it gave a jolt of energy when he was in Congress a decade ago. He sees much the same thing happening post-Trump: “There’s going to be critical pressure on the Democratic Party to deliver a progressive agenda,” he says, and our politics will continue to be “driven by the response to whatever the party in power tries to implement.” Nothing new there, of course; the problem is, the fight keeps getting nastier, deepening the divide. J.J. Balaban sees the same thing, citing the George W. Bush years: When the Republican Party’s midterm results were bad, the party didn’t move to the center — it pushed right. And Balaban laughs at the idea that Donald Trump will go away from the political scene if he loses.
It takes two to tango, yes, but there’s no getting around what’s really fueling our political divide, especially in the past four years: Our president and his party are quite willing to run roughshod over laws and institutions and norms that have been the bulwark of our politics for better than two centuries, with an endgame, it’s now abundantly clear, of nothing more than accruing power.
And the Republican Party is too far down that road to back off now, even as there’s some noise that it will enter a period of soul-searching post-Trump. It’s absurd to think that the party’s Faustian bargain of sucking up to Trump for his entire first term can segue into a sudden rethinking that yields a new, thoughtful conservatism; Republicans passed the expiration date for a moral reckoning long ago.
So Trumpism, it’s clear, will live on, and Bill McSwain is living proof of that.
A couple of days after my second interview with him, McSwain calls me back. Earlier, he wouldn’t tell me if he would be voting for Donald Trump next month. McSwain now tells me he’ll vote again for the President. When I ask if he has any misgivings about that vote, McSwain laughs, briefly; it’s a nervous — and honest — laugh that says two things: Yes, he does have misgivings, and no, he isn’t going to state publicly what they are.
Obviously, McSwain was worried about his first non-answer. But coming forward to say that he’ll continue supporting this president only highlights how fast and loose his self-proclaimed moral courage really is. If he wants to stay in his job while Donald Trump is president — and if he wants a Republican political future — McSwain will remain silent about Trump thumbing his nose at the very thing he holds near and dear: the rule of law. Instead, McSwain claims to be his own man, as if the moral failings of his boss don’t touch his crusade. In fact, continuing to stand behind a president run amok — and rejecting the validity of a national movement demanding that we all take a fresh look at the rage and pain caused by the justice system that McSwain upholds — only makes it more obvious how beholden to that law-and-order crusade he really is.
Bill McSwain — and his party — are in far too deep to change course now. And that’s very bad news for the rest of us.
Published as “True Believer” in the October 2020 issue of Philadelphia magazine.