U.S. Attorney in Georgia, BJay Pak played a critical role in preventing a catastrophic failure of our government.
After the January 6 storming of the U.S. Capitol, I remember a neighbor asking me, “Can you believe it?” I found myself answering “Yes, I do believe it; I actually thought it would be much, much worse.” And in the days following that failed effort to stop the congressional certification of the electoral results, I remained in dread of worse calamity that would prevent the inauguration of a new President.
Even as I watched Joseph R. Biden about to take his oath of office administered by Chief Justice John Roberts of the Supreme Court, the tension in my body would not release. Only when it was done, could I persuade myself that the country had passed its test.
I don’t think we will ever know for sure how close we came to a complete breakdown in our democratic processes. The public will never learn about the thousands of decisions by Americans, some famous but many obscure, that could have swung destiny in the polar opposite direction.
I thought to write this article because of one such crucial decision. The resignation of Byung Jin “BJay” Pak, the former United States Attorney for the Northern District of Georgia, a Korean American patriot, a hard-core Republican and former Trump supporter. The circumstances of his resignation on January 4 remains under investigation; I don’t know him, and have never spoken to him. But as a former federal prosecutor I’m pretty sure I know why he decided to do what he did.
To appreciate how easily his decision could have swung Pak to a different pathway, we need to recall the crushing events that have avalanched over just the past two and a half months.
Conditions were so fraught, in the days immediately after the November 2020 election, I feared Donald Trump would declare martial law. I only whispered the thought to the few close friends who shared my Korean immigrant background. Then, just days later in December, Lt. General Michael Flynn, the former National Security Advisor, actually urged the public and President Trump to cross that Rubicon. In the face of national polls showing that a vast majority of Republicans believed the election of Biden was the product of fraud, Flynn’s exhortation was nothing to laugh at.
Doubtless, my experience in Korea sharpened my fear of this threat. As a boy, the Korea I knew had been in the tight grip of President Park Chung Hee, and I still remember the stinging smell of tear gas soldiers lofted at college students who persistently took to the streets to demand democracy. And long after I called America my new home, following Park’s assassination, Korea lived through one of the most brutal events in its modern era when the military declared martial law in 1979 and thousands of Koreans in Gwangju were slaughtered.
To my mind, the use of military forces in domestic power struggles was more the norm than otherwise, employed globally, regularly and throughout human history, like clockwork.
Yet, when Flynn brashly suggested martial law, the notion was crushed by the military leadership who rejected it. This is a remarkable thing. Trump was their commander in chief. He and a cadre of high profile lawyers, including the former U.S. Attorney for the Southern District of New York, Rudolph Giuliani, persistently claimed that the election of Biden had been achieved through systemic fraud.
Dozens of Republican congressional leaders, including a prominent senator from Texas, Ted Cruz, were echoing the same. The majority of polled Republicans were demanding a new count. The level of civil unrest between two vast swaths of the American population was unprecedented in modern memory.
Why would the Chairman of the Joint Chiefs of Staff, General Mark Milley, and his top military commanders not accede to this possibility in this extraordinary time? If the military leadership had even tacitly agreed, they would have tipped the scale leading Trump to do as Flynn was suggesting, secure in the belief his generals would obey their commander.
I have no military background, but it appears that what held them back was the same spirit that caused George Washington, the nation’s first commander in chief to surrender his chance at a lifetime appointment as President: a belief in civilian democracy. Historians describe Washington not only as a great civilian leader but a military officer of uncommon courage and personal strength. He set the template upon the founding of the nation, and it was extraordinary to witness our modern generals effectively honor Washington’s commitment.
But, of course, the military leadership was not alone. Their commitment was buttressed by the legal system. Here, I return to BJay Pak and the element of our social structure that I do know something about and that is the legal process. As U.S. Attorney in Georgia, Pak played a critical role in preventing a catastrophic failure of our government.
To understand the integrity of his decision, we need to put it and him in proper context. BJay Pak was appointed by Trump in 2017 to serve as United States Attorney in a region that covered Atlanta. He was so politically-minded, he had served as a Republican party State legislator in Georgia before taking over as U.S. Attorney. He had previously been a young prosecutor in that office.
Biden won Georgia’s election by a sliver, and the drumbeat of systemic election fraud was loudest and most persistent in that State. Election fraud is a federal offense, well within the unfettered discretion of Pak to pursue to his personal satisfaction. It is hard to overemphasize how easy, even natural, it would have been for him to support Trump’s call for a deep, searching criminal investigation of election fraud.
Such an announcement by him would have been virtually irreversible; it would have burnished his conservative political credentials; won the undying favor of Trump; given hope to so many conservative Georgians; frozen even moderate Republican Senators in place rather than certifying the Electoral College results, and ultimately caused an utter stalemate. It likely would have led to endless rioting, and then likely, a declaration of martial law.
None of this happened, in part because BJay Pak chose to resign on January 4, 2021. We do not yet know why he did so, and the circumstances are being reviewed by the Department of Justice’s Inspector General.
But, to me, the dots line up like this: Pak’s resignation came on a Monday, right after Trump’s now infamous call to Georgia’s Secretary of State (a Republican), telling him “I just want to find 11,879 votes.” The vast chunk of Biden-leaning votes in Georgia came from Atlanta. In that call, Trump complained about a “never-Trumper U.S. Attorney.” Just two days after this, Pak resigned. Trump swiftly appointed the U.S. Attorney for the much smaller Southern District of Georgia to take over the Northern District office as well. This U.S. Attorney brought two veteran election fraud prosecutors with him to Atlanta.
We don’t need Sherlock Holmes to tell us that Trump was complaining about Pak and that Pak refused to accommodate Trump’s desire to undermine the Georgia election. Rather than taking part, BJay Pak resigned.
I think he did so because he was a prosecutor first and politician second. More compelling than his personal political ambitions and the mission of the Republican party was his respect for the institution of the Justice Department and its reliance on factual accuracy. As a young prosecutor in that office, he would have handled countless cases before federal judges and juries where he told himself, his peers, defense lawyers, and the triers of fact that he was there to present the facts as the evidence revealed. The institutional pressures that build on prosecutors like BJay Pak become ingrained and habitual so that telling the public about fraud when there was no evidence of it becomes simply untenable.
He was not alone of course in holding the line among Justice Department prosecutors. Even the new U.S. Attorney handpicked by Trump to replace Pak later declared there was no election altering fraud to investigate. Trump’s otherwise loyal Attorney General Bill Barr, dryly rejected the idea of massive fraud, before he too resigned; his hand-picked acting Attorney General and Deputy Attorney General, all die-hard Republicans, rejected the Trump narrative. You can bet that they each looked hard to find evidence to support it. When they came up empty, they said so.
The judiciary held the line too. More than 60 lawsuits were filed around the country and every case was rejected by judges of all political stripes. A Trump-appointed Federal judge of the Third Circuit Court of Appeals used the most cutting language in dismissing a Trump challenge to the election. If but one of these judges had instead claimed that a case had potential merit and required extended discovery and trial, Biden may be awaiting inauguration even now. The storming of the Capitol would not be characterized as an insurrection, but rather as the righteous conduct of patriots.
It is nothing short of a miracle that, with prosecutors like Pak, lawyers, judges, and military leaders steeped in their respective institutional traditions, Flynn’s call for martial law died on arrival, smothered by the weight of truth. It is hard to explain how democracy somehow came through this storm, other than to suggest that Americans like BJay Pak simply held the line.
Tai Park is a trial lawyer in NYC and former federal prosecutor in the US Attorney’s office of the Southern District. He and his family can often be found cruising the northeast corridor in their solar powered Winnebago Revel.