March 04, 2021 HUMAN RIGHTS

Fixing the Department of Justice

by Robert N. Weiner

The Department of Justice (DOJ) is a mess. Its morale is low. Its independence is compromised. And its integrity is suspect. The cleanup will be hard.

The recent spate of resignations signals the depth of the problem. In November 2020, the director of the department’s Election Crimes unit stepped down when Attorney General William Barr, contrary to longstanding department policy, authorized federal prosecutors to investigate voter fraud while post-election controversies still raged. In October 2020, a respected federal prosecutor who served in San Diego for 36 years resigned because of Barr’s “slavish obedience” to the whims of President Trump. In May, the top prosecutor on the Michael Flynn case quit when Barr ordered its dismissal. And in February, all four attorneys handling the prosecution of the president’s friend Roger Stone resigned when the department rescinded and lowered their recommended sentence.

The attorney general justified this unprecedented interference by attacking career prosecutors, who, he claimed, lack the political legitimacy to make important law enforcement decisions. As he acidly summarized his point, “Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it’s no way to run a federal agency.” Neither is attacking its employees. It is no surprise that morale at the department is in the tank.

Through reforms like those proposed here, the new administration should seek to give them the Justice Department that they—and we—deserve.

Through reforms like those proposed here, the new administration should seek to give them the Justice Department that they—and we—deserve.

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When I worked in the Deputy Attorney General’s Office during the Obama administration, we understood that some decisions had political dimensions. But where it had any influence, politics was third in line behind law and policy. We understood as well that the White House had a say in some DOJ decisions, but only on issues of policy, as communicated through senior political appointees. Most important, we understood that when it comes to law enforcement, politics and White House interference were taboo.

The Clinton administration, too, respected the independence of law enforcement. In the White House Counsel’s Office back then, I was the designated enforcer of a strict ban on White House meddling in such decisions. Once, a Justice Department official invited me to a meeting that I did not realize affected a law enforcement issue. The question on my arrival was whether the division head could throw me out before I scrambled away on my own.

Shattered norms are not easily restored. Still, a few reforms at least could help revitalize the independence and integrity that marked the department’s finest hours.

First, the president should issue an executive order directing employees of the White House and federal agencies to respect the independence of the Justice Department. That message needs the weight of the president’s authority behind it.

Independence means that the White House should not be involved in decisions regarding the investigation and prosecution of Trump administration officials, including the former president. Undoubtedly, this degree of independence will pose difficulties. Investigations of a previous administration, particularly of a past president, could well undermine the legitimacy of the department in the eyes of some 70 million Trump voters and lead to domestic disruptions. Further, prosecuting senior leaders from the prior administration is potentially a bad precedent, easily subject to abuse. On the other hand, letting crimes go unpunished invites greater impunity in the future.

The best course through these shoals is to isolate the decisions of the DOJ from political influence as far as possible, with one exception. The president should be able to stop, but not to initiate, an investigation and prosecution of his predecessor. The potential for social upheaval is too dire to deny the president any say.

There remains the question of which investigations the Justice Department should undertake. It is hard to articulate any blanket rules, but the department may wish to distinguish between actions by Trump officials that violated the constitutional rights of individuals—such as the separation of immigrant children from their parents—and those that affected the allocation of power between the branches of government. The political consequences of political decisions—for example, losing an election—may themselves sufficiently deter transgressions against Congress such that DOJ investigations are not needed, but they may not be sufficient to deter transgressions against individuals absent the threat of DOJ prosecution. The point is not that the department should forgo all investigations of lies, usurpation, and other misconduct vis-à-vis the other branches. It is, rather, that in balancing rule-of-law values on the one hand against public unrest and precedential risks on the other, the inter-branch category should carry somewhat less weight, depending, importantly, on the seriousness of the breach.

Second, the department should reinstate policies, abrogated by Attorneys General Sessions and Barr, that protect civil liberties and secure the checks and balances of our constitutional system. The department should do this through formal regulations issued after notice and an opportunity to comment. Under the Administrative Procedure Act (the APA), the department cannot rescind such regulations without complying with notice and comment procedures, making them more durable than policies simply announced by the attorney general or other officials.

For example, until recently, the department’s longstanding policy, not reflected in a formal regulation, was that in the run-up to an election, the DOJ should not take any action that could influence its outcome. To prevent that policy from being easily changed at the whim of an attorney general, it should be codified as a regulation issued after notice and comment.

The department also has a longstanding policy of defending the constitutionality of federal legislation so long as there is any reasonable argument to uphold the law. That policy reflects sound constitutional considerations. The Justice Department should not lightly disregard the will of elected representatives, as embodied in federal legislation. The president can change positions on some issues in litigation. But only Congress can change legislation. Further, the president has the constitutional obligation to “take care” that the laws as they exist be faithfully exercised.

The Justice Department’s duty to defend federal legislation suffered serious erosion during the last administration. The department under Barr not only refused to defend the Affordable Care Act (ACA) but urged that it be struck down in its entirety. No duty of candor to the Court compelled that position, nor did it reflect any constitutional obligation. To the contrary, even the most conservative critics of the ACA derided the department’s legal arguments. A regulation codifying the department’s obligation to defend laws as they exist might make a repeat performance less likely.

Third, the department should adopt regulations that commit it to cooperate with congressional oversight, within the bounds of privilege law and consistent with the integrity of individual law enforcement matters. Those regulations should bind the department to engage in the accommodation process that the executive branch and Congress have traditionally undertaken to resolve privilege disputes short of litigation. In that process, the executive branch seeks to satisfy the legitimate investigatory and legislative interests of Congress without harming its own institutional interests. Congress, at least in theory, does the same. In most cases, there is a middle ground that is satisfactory—or at least equally unsatisfactory—for both sides.

Fourth, the department should revitalize its Civil Rights Division, which has been hollowed out during the Trump administration. Civil rights enforcement should once again be a priority. For example, the division under Attorney General Sessions abandoned consent decrees as tools to settle investigations of police departments that were accused of discriminatory law enforcement practices. Whether or not those decrees are still in force, the division should insist that the departments maintain the standard of conduct to which they previously agreed.

Fifth, the Department of Justice has the responsibility to defend the president and other officials against lawsuits relating to their official actions. The department’s defense of President Trump suggests that this test does not clearly demarcate the line between representing the president personally, which is not the department’s job, and representing the presidency, which is. The department, for example, appeared as counsel for the president in a libel suit by a woman he accused of lying when she claimed he sexually assaulted her. The department also defended the president’s continued receipt of business favors from foreign officials. These are not the kinds of cases that the department has previously treated as within the scope of the president’s duties, justifying federal representation. A task force to articulate guidelines that clarify when DOJ representation of a president is appropriate and when it is not could restore a principled approach to these decisions.

Finally, the DOJ should strengthen the independence of the special counsel and, concomitantly, should consider treating all political appointees within the DOJ as presumptively recused in investigations of the president who appointed them. That would leave prosecutorial decisions in the hands of career prosecutors. To paraphrase Attorney General Barr, even a Montessori preschool system is preferable to the current arrangement, which stokes a perception of corruption and poses too great a temptation to make that perception real.

Beyond these specific recommendations, the leadership of the department needs to renew confidence within and without regarding its commitment both to the rule of law and to the independence of the department’s employees. To those litigating against the department in recent years, it sometimes seemed that its career lawyers were thrown into court without reliable assurances that the department was meeting its obligations in discovery or in response to court orders. The line attorneys dutifully bore the courts’ wrath without publicly pointing fingers.

These career employees include some of the finest public servants I know. Most have maintained studious nonpartisanship and a rigorous commitment to the rule of law. The department’s political leadership has failed them in recent years. Through reforms like those proposed here, the new administration should seek to give them the Justice Department that they—and we—deserve.

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Robert N. Weiner

Past Chair, ABA Section of Civil Rights and Social Justice; Senior Counsel, Arnold & Porter; Senior Consultant, Voting Rights, Campaign Legal Center

Robert N. Weiner, a former chair of the ABA Section of Civil Rights and Social Justice, works at Arnold & Porter as well as the Campaign Legal Center in Washington, D.C.