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December 01, 2008

Restoring and Reviving the Department of Justice

by Daniel Marcus

Over the last eight years, the confidence and trust of the legal profession and the American public in the integrity and independence of the Department of Justice have been seriously undermined, while the morale of the department’s outstanding career lawyers has correspondingly declined. The litany of failures and disturbing revelations is depressingly familiar by now: the reliance by two attorneys general and some assistant attorneys general on a small cadre of advisors, excluding career lawyers from participation in important decisions; the issuance by the Office of Legal Counsel (OLC) of controversial legal opinions––particularly on the president’s powers in the War on Terrorism––often in secret and without normal consultation; the politicization of the hiring of career lawyers; the firing of one or more U.S. attorneys apparently because of their failure to bring prosecutions that would have benefited the president’s party; and the breach of the “wall” designed to prevent the White House from seeking to influence prosecution and enforcement decisions by the department.

These problems are serious because the confidence of Americans in the integrity and independence of the Department of Justice and in the president’s commitment to the rule of law is essential to the health of our democracy. Fortunately, the tools to remedy these problems are readily at hand. They consist, first of all, in the thousands of capable career lawyers in the department––the nation’s biggest and best law firm––who are eager to respond to new leadership and to restore the department’s reputation. With a president and attorney general who understand and articulate their proper respective roles in our justice system and their commitment to the rule of law in the executive branch and in the nation, the department can return to its essential role in maintaining a system of justice in the United States that has historically been a model for the world.

Following are some steps the new president and the new attorney general should take.

1. The president has chosen an attorney general, Eric Holder, who has outstanding professional qualifications and who has not been a close political associate of the president. This is an important first step. Now the attorney general must use his stature to be a persuasive minister of justice for the United States and to preserve the independence of the department.

2. The president and the attorney general should agree on a set of principles and procedures to reestablish a proper working relationship between the White House and the Justice Department. The Department of Justice, after all, is a different animal from the Department of Housing and Urban Development, the Department of Health and Human Services, and other executive branch departments. The attorney general, to be sure, reports to the president and is expected to carry out his policies. There is nothing improper in the president articulating law enforcement policies for the department to follow––whether it be emphasizing immigration enforcement or drug cases, or changing priorities in civil rights or environmental enforcement programs. Nor is it improper for the attorney general to consult the president as to what legal position the department should take in litigation before the Supreme Court or other courts. What is improper, however, is for the president or other White House officials to tell the attorney general or other Justice Department lawyers what cases to bring, who to prosecute, or whether to settle a case. Unfortunately, the Bush administration relaxed Clinton administration guidelines limiting communication between the White House and the Justice Department. This was a mistake, as the U.S. attorney firing scandal emphasizes. Attorney General Michael Mukasey deserves credit for working out new rules with the White House that return largely, though not completely, to the Clinton administration model. The new attorney general and the new White House counsel should review these rules and revise them as necessary to bar communication between the White House and the department except by designated senior members of the White House counsel’s office and senior department officials, and the president should publicly announce a commitment to enforcing these rules and making sure that the White House refrains from influencing individual prosecution and enforcement decisions or the hiring of career lawyers.

3. One of the most important and sensitive functions of the attorney general is to give definitive legal advice to the president and the executive branch––a function that is carried out through OLC. The president is, in a sense, the attorney general’s most important client. But this is no ordinary attorney-client relationship. The attorney general and OLC must walk a tightrope, balancing between an understandable and appropriate desire to support what the president wants to do and a fundamental responsibility to be faithful to the law. The job of OLC in its opinion-writing role––often forgotten during the last eight years––is not to advance every non-frivolous argument that can be made to justify what the president wants. Rather, it serves more of a quasi-judicial role for the executive branch, faithfully applying legal reasoning and precedent to the question at hand––albeit in the context of a body of executive branch law formed by prior OLC opinions (a body of law that, not surprisingly, is somewhat more favorable to executive power and prerogatives than Congress or the courts might be).

The political appointees who have headed OLC in the Bush administration (with some notable exceptions such as Jack Goldsmith and Daniel Levin) have not always adhered to these principles, and their failure to do so has perhaps been the most damaging blow to the department’s reputation in the last eight years. The most egregious example is the 2002 opinion on coercive interrogation and torture, which after it became public and led to an uproar in 2004, was withdrawn and revised. It not only included an incredibly narrow definition of “torture” so as to legitimate a number of techniques traditionally viewed as torture, but also set forth the wholly gratuitous and shocking argument that the federal criminal statute banning torture could not constitutionally be applied to the president if he decided, as commander in chief in the War on Terrorism, that it was necessary to torture detainees to obtain information. Other examples of strained-beyond-credulity opinions include OLC’s opinions concluding that detainees in the War on Terrorism are not protected by the Geneva Conventions or the Convention against Torture’s ban on “cruel, inhuman, or degrading treatment.” And the same can be said of some of the arguments that the department has advanced in support of the legality of the Terrorist Surveillance Program operated by the National Security Agency from 2001 to 2007, before the administration finally went to the Foreign Intelligence Surveillance Court and Congress to get judicial and statutory authorization.

This sad record stands in contrast to OLC’s record and reputation in past administrations, both Republican and Democratic. Heads of OLC as diverse as Theodore Olson, Charles Cooper, Douglas Kmiec, Walter Dellinger, and Randolph Moss managed to walk the tightrope––finding ways to justify presidential actions, consistent with past precedent and mainstream legal reasoning when they could, and declining to do so when they couldn’t.

In the last analysis, there are no substitutes for a president who makes clear that he wants solid legal advice, not “yes-man” advice from the department, and for an attorney general who is prepared to say “no” to the White House when he feels he must, and to resign if the president overrules him.

4. The new attorney general should reform the decision making process in the department to make it more transparent and more inclusive. He should resist the temptation to rely mainly on a small coterie of advisors, and he should instruct the assistant attorneys general to do the same. The career lawyers of the department are a tremendous resource of legal expertise and judgment leavened by experience; bringing them into decision-making in the department will improve the quality of decisions as well as morale. And the department needs to open up more to the public, with more frequent press conferences and briefings by the attorney general and other senior officials. The practice of secret OLC opinions on matters as important as the torture statute and the Geneva Conventions should be revisited. While there is a legitimate need for confidentiality in some cases, the presumption should be that important opinions should be made public as soon as possible, in redacted form if necessary.

As the new administration begins, the president and the attorney general have the opportunity to restore the trust of the American people in the Department of Justice. It is important to seize this opportunity.

Daniel Marcus

Daniel Marcus teaches constitutional law and national security law at the Washington College of Law, American University. In the Clinton administration, he served as senior counsel in the office of White House Counsel and in several senior positions at the Depart-ment of Justice, including associate attorney general.