Credibility and the Department of Justice

By Scott Horton

In a Salon column, Bud Cummins, the highly regarded former U.S. Attorney in Little Rock, explains what is at stake in the present controversy.

Put simply, the Department of Justice lives on credibility. When a federal prosecutor sends FBI agents to your brother's house with an arrest warrant, demonstrating an intention to take away years of his liberty, separate him from his family, and take away his property, you and the public at large must have absolute confidence that the sole reason for those actions is that there was substantial evidence to suggest that your brother intentionally committed a federal crime. Everyone must have confidence that the prosecutor exercised his or her vast discretion in a neutral and nonpartisan pursuit of the facts and the law.

Being credible is like being pregnant—you either are, or you aren't. If someone says they “kind of” believe what you say, they are really calling you a liar. Once you have given the public a reason to believe some of your decisions are improperly motivated, then they are going to question every decision you have made, or will make in the future. That is a natural and predictable phenomenon.

There certainly is no shortage of countries around the world in which politics plays a regular role in prosecutions, where political adversaries of the regime in power are routinely made the target of criminal probes for the purpose of tarnishing their reputations or barring them from seeking public office. And Cummins is right—once this process is begun, or even is the subject of political discussion—the administration of justice is tarnished. Indeed, it quickly becomes progressively more difficult even to speak of “justice.”

All around the United States, the prosecutorial judgment of U.S. attorneys is being openly questioned. This is the inevitable and proper consequence of the current scandal. If eight U.S. attorneys were dismissed because they resisted efforts to politicize prosecutorial decision-making, what should we think about the 85 U.S. attorneys who remained on their jobs, and particularly those who achieved the highest marks on the Sampson-Rove scorecard? The ultimate victim of this scandal is not the cashiered U.S. attorneys, or the Justice Department employees now understandably in a morale slump, but the administration of justice itself.