Article — From the March 2008 issue
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Article — From the March 2008 issue
We should not be surprised, in this final year of the George W. Bush presidency, that the reputation of the Justice Department has reached a low point. For a long time now, the president’s party has had the odd tic of projecting its own intentions onto its political enemies, and it seems to project most intensely those desires it holds most dear. For instance, Republicans have decried the “big government” tendencies of “nanny state” liberals, even as they themselves have massively expanded the scope of the federal government. And they have been vocal about perceived Democratic legal perfidy. Indeed, the 2000 G.O.P. platform was openly contemptuous in its assessment of the Clinton Justice Department:
The rule of law, the very foundation for a free society, has been under assault, not only by criminals from the ground up, but also from the top down. An administration that lives by evasion, cover-up, stonewalling, and duplicity has given us a totally discredited Department of Justice. The credibility of those who now manage the nation’s top law enforcement agency is tragically eroded.
As a description of the Clinton Administration, this statement was preposterous. But as a description of the present-day Justice Department, it could not be more apt. Every new president comes to Washington with a policy agenda, of course, appointing officials in the expectation that they will implement that agenda. And especially since the end of the Sixties, such red-meat political issues as abortion, civil rights, and immigration policy have risen to the top of the law-enforcement agenda. This trend has caused controversy, as it should, but the controversy is nonetheless democratic. In recent years, though, these controversies have obscured a larger phenomenon. It is increasingly clear that Republicans have come to understand the Justice Department not as “the very foundation for a free society,” or even as a spoils system for issues-oriented voters, but rather as a machine that utilizes “evasion, cover-up, stonewalling, and duplicity,” among other techniques, to achieve the far more fundamental goal of taking and maintaining power.
Republicans appear to have been operating under this understanding of the role of the law in politics since well before Bush took control of the White House. During the years of the Clinton Administration, for example, relentless “investigations,” demanded by Republicans on Capitol Hill, created a series of trumped-up “-gates” —Cattlegate, Filegate, Travelgate—and Kenneth Starr, in his rambling examination of Bill Clinton’s sex life, explored techniques that would inform dozens of political prosecutions under Bush. These efforts culminated not in Clinton’s impeachment but rather in the 2000 election itself. On Election Day, the American people chose Al Gore over George Bush by a margin of 540,000 votes, but in the end only the votes of the Supreme Court mattered. With the help of five out of the seven Republican-appointed justices, Bush entered the White House, and it became clear that political power could be gained through the mechanics of the justice system itself.
The Republican project of the past seven years has been to build on that success, to transform the legal apparatus of the United States into an instrument of partisan force. Each step of that transformation has been well reported, but few commentators have noted how those steps have in turn brought about a complete subversion of the original law-enforcement function of the Justice Department. Indeed, the absence of controversy demonstrates precisely how successful the administration has been at mainstreaming its odd notions of justice. And this raises a larger concern.
 I had high hopes that the new attorney general, Michael Mukasey, whom I have known for twenty years, would be such a man. We do not share an ideology, but in the past he has proven an able advocate for the rule of law. As of this writing, however, he has done little to change the direction of the Justice Department. In particular, he has refused to acknowledge that waterboarding is torture, likely because doing so would require that he investigate the actions of the man who appointed him. Mukasey has the opportunity to be a Ruckelshaus or a Richardson, but he could also follow the path of Robert Bork, who first came to prominence when he accepted Richard Nixon’s appointment as acting attorney general, and promptly followed the president’s order to fire Cox.
The last serious attempt to subvert the Justice Department came from Richard Nixon, who was curbed and shamed. The Watergate era was marked by criminality, but also by heroism. Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus, for instance, both resigned rather than carry out a lawless presidential order to fire special prosecutor Archibald Cox. The Bush transformation, however, brings us no Richardsons or Ruckelshauses. It has been achieved with minimum notice, hidden within the noise and chatter of a hundred other controversies and scandals. The country could conceivably recover from most of Bush’s follies, but the destruction of the legal function itself will pose a far more serious challenge: In the absence of public outrage, is it realistic to expect the next president to relinquish the imperial power bequeathed him (or her) by the last one?
Scott Horton , an attorney in New York City, writes the daily weblog No Comment for Harpers.org. His last article for Harper’s Magazine, “State of Exception,” appeared in the July 2007 issue.
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No Comment — April 12, 2013, 11:11 am