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?
Subverting an entire legal apparatus requires great effort. Laws must be circumvented, civil servants thwarted, and opposing politicians intimidated into silence. With an election redecided in the courts, though, the Bush team was quick to lock in its gains.
The first step was to establish a bureaucracy more in tune with the new approach. Setting the proper tone would not be simple, though. Justice had long been seen as a prize for loyal movement conservatives as well as for the religious right, and both groups expected the department to be run by ideological warriors willing to risk power in the pursuit of specific policy goals. Key Bush aides wanted Montana’s moderate governor, Mark Racicot, for the top job at Justice, but movement conservatives objected and pushed through their own candidate—former Senator John Ashcroft, an ostentatiously devout evangelical Christian.
Ashcroft eventually would be replaced by Alberto Gonzales, a notably pure specimen of partisanship, but in the meantime the administration faced an even more significant obstacle, which was that installing partisans in career positions is illegal. After a long struggle over a political spoils system that flooded Washington with partisan hacks, Congress passed the Pendleton Civil Service Reform Act of 1883, which generally required that civil servants be hired on the strength of their professional qualifications and without regard to their party affiliation or political beliefs. And it strengthened that law considerably in 1939, when it passed the Hatch Act, which restricted the involvement of civil servants in partisan political campaigns.
The Bush Justice Department labored to get around these laws in various ways. The Honors Program and Summer Law Intern Program at Justice, for instance, has long served as a fast track for students from elite law schools. Under the Bush Administration, however, the hiring shifted from the Ivies to avowedly conservative schools. Regent University Law School, founded by Pat Robertson in 1986, claims to have placed more than 150 of its graduates in positions with the Bush Administration. Regent, which ranks among the bottom tier of law schools, struggled to secure an accreditation with the American Bar Association, just as its alumni struggle to find employment. Hiring from fourth-rate schools is perfectly legal, of course, and the practice has the additional benefit of creating a new class of grateful civil servants.
There were less subtle methods as well. Among the loyal young conservatives at Justice was one Monica Goodling, who received her law degree from Regent in 1999, spent 2000 doing opposition research for the Republican National Committee, and was appointed to Justice in 2001. By 2006 she had risen to become a White House liaison working directly out of the office of Alberto Gonzales. For much of her tenure, Goodling had a major hiring role at the Justice Department. Her approach was blunt. The New York Times reports that Robin Ashton, a “seasoned criminal prosecutor at the Department of Justice,” learned from her boss that she was being passed over for a promised promotion because she had what her boss called “a Monica problem.” The problem was that she “believes you’re a Democrat and doesn’t feel you can be trusted.” Jack Goldsmith, a conservative law professor who became head of the Office of Legal Counsel in 2003, recalled his own interview with a Goodling colleague in his 2007 book about the Bush Administration. He reports that he was asked immediately why he had made an $800 campaign contribution to a law-school colleague who was a Democrat, and that he was also asked, point-blank, “Are you a Republican?” (He was.)
In congressional hearings held last May to investigate Justice Department hiring practices, Goodling cited her Fifth Amendment right not to incriminate herself. Under a grant of limited immunity, however, she acknowledged that she “may have gone too far in asking political questions of applicants for career positions” and that she “may have taken inappropriate political considerations into account on some occasions.”
Goodling resigned from the Justice Department shortly thereafter, but her hires remain. By 2006, the New York Times reported, Alberto Gonzales had delegated to Goodling and his former chief of staff, Kyle Sampson, “the power to appoint or fire all department political appointees other than the United States attorneys.” As we will see, the “Monica problem” would come to vex the selection even of U.S. attorneys. But for the moment it is important to note only that career civil servants were being replaced with hacks who would put loyalty to Bush well above the traditional functions of the Justice Department.
The first priority of the Justice Department, of course, was not polishing the résumés of fourth-tier law-school grads. It was helping Republicans at the polls at election time. One of the ways the department would accomplish this was by restaffing the branch primarily responsible for making sure Americans are allowed access to the ballot box—the Civil Rights Division—so that it would work actively to prevent minorities from voting. The staff then in place would fight such a subversion with considerable institutional wile, which was why they had to be replaced. The Washington Post reports that in 2005, nearly 20 percent of the division’s lawyers had left, “in part because of a buyout program that some lawyers believe was aimed at pushing out those who did not share the administration’s conservative views on civil rights laws.”
One of the views most passionately held by the new administration was that the business of the Civil Rights Division was not to protect the franchise of historically disenfranchised minorities but rather to prevent the scourge of so-called voter fraud. Hans von Spakovsky, who, as counsel to the assistant attorney general for civil rights, helped formulate the administration’s new voting policies, had in the 1990s written a policy paper, entitled “Voter Fraud: Protecting the Integrity of Our Democratic System,” that anticipated the new thinking. Spakovsky proposed that “the greatest democracy in the history of the world” was “cavalierly undermining the integrity of the most fundamental right its citizens have—their right to vote in fair elections.” This could not stand.
In 2002, Ashcroft launched a “Ballot Access and Voting Integrity Initiative.” In a speech at the time, he said the initiative was designed both to deter voter discrimination, a project that had been the historic basis for the Civil Rights Division’s mission, and also to deter election fraud, which was basically a new mission. It was the Spakovskian fraud, though, that spurred the greatest heights of hysterical rhetoric:
Votes have been bought, voters intimidated, and ballot boxes stuffed. The polling process has been disrupted or not completed. Voters have been duped into signing absentee ballots believing they were applications for public relief. And the residents of cemeteries have infamously shown up at the polls on election day.
Political war stories like these are often told with a grin, but these failures of our democracy are no laughing matter. There is nothing funny about winning an election with stolen votes. And there is no occasion for mirth by the campaigns that commit these offenses. All of us pay the price for voting fraud.
This was all nonsense. In reality, the Justice Department had decided to focus on the acts of specific individuals—voters who may have registered in the wrong district, or who may not have been eligible to vote because of a criminal conviction, or who may have used a false identity in order to vote. Of these, only the last category certainly involves fraud. The others may just as easily be matters of honest mistakes. More to the point, such acts are incredibly rare—certainly far too rare to subvert an election. New York University’s Brennan Center for Justice recently completed an extensive survey of Republican allegations and found that it “is more likely that an individual will be struck by lightning than that he will impersonate another voter at the polls.” The authors noted as well that “inflated claims are not harmless” and that “claims of voter fraud are frequently used to justify policies that do not solve the alleged wrongs, but that could well disenfranchise legitimate voters.”
Chief among those policies is a proposed national voter I.D. law, which most analysts believe would have the effect of suppressing turnout among minorities and other traditionally Democratic-leaning voters. But voter-fraud investigations can also have a suppressive effect in and of themselves.
Republicans discovered this almost immediately upon launching their initiative. The sole large-scale criminal investigation to take place in the wake of the 2002 congressional elections was a total bust in terms of arresting fraudulent voters, but it appeared nonetheless to have had positive long-term consequences for Republicans. When Tim Johnson, one of South Dakota’s two Democratic senators, defeated his Republican challenger, John Thune, by a tiny margin of 532 votes, the Republican reaction was to launch an investigation into the voting activity at several Indian reservations, the citizens of which traditionally had voted for Democrats. Indian Country Day reported that “Republican attorneys fanned out across the state” in order to “gather affidavits to show voting irregularities,” but that “of the 50 affidavits the Republican operatives collected, only three alleged criminal activity, and two of those proved to be false.” Two years later, though, Thune ran against South Dakota’s other senator, Minority Leader Tom Daschle. And in that election, supposedly fraud-wary Republican poll-watchers were now emboldened to follow Indian voters and write down their license-plate numbers. A federal judge ordered them to stop, and they finally did, but Thune won the election in the end, by 4,508 votes.
Logical inference would suggest that suppressing votes and creating an environment in which a national voter I.D. law could be enacted was the true motive of the Justice Department initiative. (Indeed, just this past January, the Supreme Court heard arguments about the constitutionality of an Indiana voter I.D. law.) But logical inference is not necessary in this case. The former political director of the Texas Republican Party, Royal Masset, actually told the Houston Chronicle in 2007 that it is an “article of religious faith that voter fraud is causing us to lose elections,” but then acknowledged that such faith was unfounded. What he did believe, according to the Chronicle’s paraphrase, was that “requiring photo IDs could cause enough of a drop-off in legitimate Democratic voting to add 3 percent to the Republican vote.”
The final proof that the Civil Rights Division enforces the law in a selective manner is that the Justice Department rarely pays attention to Republicans. Both Karl Rove, who as White House political director oversaw much of the Justice Department transition, and Republican commentator Ann Coulter were reported as having committed possible voter fraud, on the basis of their having voted in districts other than those in which they maintained their principal domicile. In Rove’s case, no prosecutorial action was taken. Coulter’s case was somewhat more complex. The Palm Beach County Sheriff’s Office began an investigation, only to call it off after receiving a call from the FBI corroborating an odd and irrelevant claim: Coulter had been unforthcoming about her true address because she had wanted to hide her whereabouts from a stalker.
The American system of democracy has many defenses, and the Bush Administration overcame each of them in turn. It was not enough simply to control the bureaucracy. High officials as well had to understand that their function was not to enforce the law but rather to express the will of the president. The next step, then, would be to discipline the U.S. attorneys.
The U.S. attorneys serve ninety-three judicial districts and report directly to the attorney general. They prosecute all criminal cases brought by the federal government and defend all civil cases in which the United States is a party. In that there are so few of them, they are almost uniquely powerful, akin to members of the Senate. They are appointed by the president and by tradition serve a minimum of four years. This tradition was upended when Attorney General Gonzales, on Bush’s authority, sacked seven U.S. attorneys on December 7, 2006. No explanation was given at first, and the maneuver itself was made possible only by an obscure provision in the 2005 reauthorization of the USA PATRIOT Act.
The case of Albuquerque U.S. Attorney David Iglesias makes clear the thinking behind the firings. Iglesias was born in Panama, where his father belonged to an indigenous tribe. He financed his law-school education by joining the Navy and becoming a JAG officer, and he first appeared on the public scene in connection with a highly unusual court-martial at Guantánamo that later furnished the plot for the Aaron Sorkin play A Few Good Men. (The Iglesias role was played in the film version by Tom Cruise.) In 1998, Iglesias was narrowly defeated by Democrat Patricia A. Madrid in a bid to become New Mexico’s attorney general. When the Republicans came to power in Washington, though, Iglesias was recognized as a rising star and quickly appointed as a U.S. attorney.
For five years, Iglesias achieved distinction for his work as a prosecutor, but in 2006, as the midterm elections approached, things turned very sour. New Mexico is one of the dozen states in which national elections are decided. In 2000 the state went for Gore. In 2004 it went for Bush. In both elections the margin of victory was paper-thin and highly disputed. And Iglesias, like other U.S. attorneys, was expected to push aggressively against “voter fraud.” Iglesias did so and was recognized for his efforts. In 2004 he reacted to Republican complaints about a highly effective voter-registration program run by a grassroots activist organization, ACORN, by creating a special task force of FBI agents and prosecutors to fully investigate the allegations. He was selected for the faculty of the Justice Department’s October 2005 Voting Integrity Symposium, at which more than a hundred prosecutors were trained in handling fraud cases. But that wasn’t enough.
Iglesias says that he received a series of odd calls in October 2006. The first was from Congresswoman Heather Wilson, who was locked in a close contest with her Democratic challenger in the upcoming midterm election. The second call was from Republican Senator Pete Domenici, the powerful longtime chair of the Senate Budget Committee. Iglesias later described the exchanges in a New York Times op-ed column, headlined “Why I Was Fired”:
Ms. Wilson asked me about sealed indictments pertaining to a politically charged corruption case widely reported in the news media involving local Democrats. Her question instantly put me on guard. Prosecutors may not legally talk about indictments, so I was evasive. Shortly after speaking to Ms. Wilson, I received a call from Senator Domenici at my home. The senator wanted to know whether I was going to file corruption charges—the cases Ms. Wilson had been asking about—before November. When I told him that I didn’t think so, he said, “I am very sorry to hear that,” and the line went dead.
Why was the timing of this indictment so important? Domenici, who was seventy-five and nearing retirement, had a protégée and possible successor in Congresswoman Wilson. But Wilson was then locked in a tough battle with (of all people) Patricia A. Madrid, then serving her second term as New Mexico’s attorney general and looking to move onto the national stage. Wilson had based her campaign against Madrid around the idea that Madrid had been ineffective in combating corruption in New Mexico’s state government. The indictment would therefore have provided exactly the kind of attack-ad fodder Wilson needed. Iglesias’s decision to adhere to proper procedure denied her that boost. Even so, Wilson pulled out a narrow win. (She is now running for Domenici’s Senate seat.)
Had Iglesias indicted the Democrat, he would have violated his ethical obligations as a prosecutor and committed a felony. Instead, he held rigorously to the rules, which forbid a U.S. attorney from manipulating prosecutions in order to attempt to affect election contests. But in the Bush Administration, putting fidelity to the law ahead of the G.O.P.’s election efforts was a career-ending move. New Mexico’s Republican Party chairman, Allen Weh, complained about Iglesias to Rove, according to McClatchy Newspapers, and Rove said: “He’s gone.” This was a fairly significant breach of tradition, though, and it took some persistence. The Albuquerque Journal reported that Domenici asked Gonzales to fire Iglesias, but Gonzales refused. Domenici then met with President Bush, who made the final call.
The other U.S. attorneys fired in December have similar stories to tell. Paul Charlton of Phoenix had pursued investigations involving two Republican lawmakers. Dan Bogdan of Las Vegas had been looking into charges against a Republican congressman then running for governor. Seattle’s John McKay had failed to rally to the side of the G.O.P. in a recount controversy and had not pursued the “voter fraud” scam with sufficient vigor. San Diego’s Carol Lam was handling a highly embarrassing fraud investigation focusing on senior political appointees at the CIA as well as two Republican congressmen. But even more troubling is the case of several U.S. attorneys who were preliminarily listed for removal but then retained. Two of them—Milwaukee’s Steve Biskupic and Dunnica Lampton of Jackson,
Mississippi—brought politically charged corruption indictments involving Democrats during an election cycle, clearly with the intention of directly influencing the elections for the benefit of the G.O.P. Each secured a conviction, though Biskupic’s case was subsequently overturned in an extraordinary opinion of the Court of Appeals, the key word of which was “preposterous.” Lampton’s prosecution, which targeted Mississippi’s largest Democratic donor, is now on appeal.
Both Biskupic and Lampton received a reprieve—they could continue serving as U.S. attorneys—thereby reminding us that it is not the terminated U.S. attorneys who should be a subject of concern as much as it is those who were kept on.
All of these steps were helpful to the Republican Party. But even with hacks in place, minorities disenfranchised, and dissenters punished into submission, voters could still be expected to put a Democrat into office from time to time. In these extreme cases, though, the Justice Department could once again be counted on for a remedy.
In 2007, Donald Shields and John Cragan, two retired professors, released the preliminary results of a long-term study of the Bush Justice Department’s investigations of public officials. They found that between 2001 and 2006 the Justice Department had initiated 375 investigations of public officials. They also found that 298 of those investigations targeted Democrats and 67 of them targeted Republicans. Shields and Cragan concluded that the odds of this imbalance occurring randomly were one in ten thousand.
One of those 298 Democratic targets was former Alabama Governor Don Siegelman. Arguably the most successful Democrat-ic politician in recent Alabama history, Siegelman had occupied almost every statewide elective office, frequently winning by large margins. He was elected governor in 1998 with a 57 percent majority. In 2002, however, Siegelman faced a strong challenge from Republican Bob Riley. The election was the closest in the state’s history, and was ultimately called for Riley following a late-night “computer glitch” that moved votes on just one line—that of the gubernatorial contest—enough to reverse the outcome of the race. A study the following year by Auburn University’s James Gundlach strongly suggested “systematic electronic manipulation.” But this electoral oddity remains unexamined by the Justice Department.
Later that year, however, as the Mobile Press-Register was publishing a poll that showed Siegelman trouncing Riley in a rematch, the Department of Justice finally took action. It launched an investigation of Siegelman. The case was based on allegations that Siegelman had appointed Richard Scrushy, the CEO of the Birmingham-based health-care firm HealthSouth, to an uncompensated hospital-oversight board as a quid pro quo for Scrushy’s having arranged a $500,000 contribution to a 1999 initiative to promote a state lottery bill favored by Siegelman. There were several problems with the case. First, the contribution itself was legal. There was no payment to Siegelman, or even to his campaign. Also, Scrushy didn’t support Siegelman in the election. He was a Republican and had backed Riley. In addition, Scrushy had been appointed to the same board by three prior governors. And finally, according to his own uncontradicted testimony, Scrushy didn’t even want the appointment.
It was a clear case of selective prosecution—and if the theory applied to the Siegelman prosecution were to be applied uniformly, many in the Bush Administration would now be in prison. George W. Bush singled out 146 individuals who gave or gathered $100,000 (to his actual political campaign) for appointment to far more desirable postings as ambassadors, cabinet officers, or members of his transition team. Not a single one of these appointments triggered a Justice Department investigation.
Siegelman became the target of two criminal investigations by two U.S. attorneys before two federal judges. In 2004 he was told that, although a couple of issues remained, the investigations were in the process of being wrapped up. But then, as the 2006 gubernatorial election approached, the case was dusted off and resumed. Even before the trial came about, Siegelman’s reputation had been demolished by a steady process of venomous leaks to the press, which could only have come from sources close to the prosecution. Siegelman was convicted in May 2006 on a series of corruption charges, and Riley coasted to an easy reelection the following November.
Putting one’s political enemies in prison is serious business, however, and not everyone in the Alabama Republican Party thought it was a good idea. After Siegelman’s conviction, Dana Jill Simpson, a Republican attorney and election volunteer, gave an affidavit to Scrushy’s attorneys describing the process whereby Siegelman had been imprisoned. Her motivation, according to her later testimony before the House Judiciary Committee, was that she “thought it was the right thing to do.” Simpson described a plan by a group of Alabama Republicans, joined by Karl Rove and using the Department of Justice, to eliminate Siegelman as a threat. In one conversation, Simpson quotes William Canary—the state’s most important Republican campaign adviser and a longtime friend of Karl Rove’s—as stating that “Karl” had given his assurance that the Justice Department would target Siegelman so that he would no longer be a problem. “My girls” would do the job, Canary said, referring to his friend, Alice Martin, who was the U.S. attorney in Birmingham, and his own wife, Leura, who was the U.S. attorney in Montgomery. In fact both Martin and the office of Canary brought cases against Siegelman, although Canary was later forced to formally recuse herself.
Simpson also testified that Rob Riley, the son of the governor, told her well before the Siegelman case began that a specific judge had been pre-selected to handle it: Bush appointee Mark Everett Fuller. After the trial, it was revealed that Fuller had been a member of the Executive Committee of the Alabama G.O.P. while Siegelman was governor. Before his appointment to the federal bench, Fuller had charged that a critical audit of his records from his own service as district attorney had been “politically motivated”—by the Siegelman administration. Fuller was asked to recuse himself. He refused. At a June 2007 hearing, Fuller sentenced Siegelman to over seven years’ imprisonment. He also denied Siegelman his freedom pending appeal, ordering him to be manacled in the courtroom and taken straight to prison.
The Siegelman case is now on appeal. In an unprecedented move, more than fifty former state attorneys general—many of them Republicans—signed a petition requesting that Congress undertake a special investigation of the prosecution and trial. The House Judiciary Committee conducted hearings on October 23 and, Chairman John Conyers tells me, is still looking into the matter.
The Siegelman case does not stand alone. In neighboring Georgia and Mississippi, suspiciously similar charges were brought by federal prosecutors. In Georgia the State Senate majority leader, Democrat Charles Walker, was charged on several corruption counts. An internal Justice Department probe actually concluded that the investigation had been politically motivated. In Mississippi a case was brought against the Democratic Party’s largest funder and three Democratic judges. Whether or not the prosecution was designed to defund the Mississippi Democrats, it had that effect. In a number of other cases, the Justice Department is proceeding with amazing vigor and heavy-handedness against trial lawyers around the country who committed the crime of attempting to raise money for the campaigns of Democrats John Edwards and Hillary Clinton.
All of these prosecutions have been high-profile matters, fanned to the press, consuming tens of millions of dollars in prosecutorial resources.
The current situation is not unprecedented. The bitter partisan rivalries of the 1790s saw the machinery of justice put to merciless use. The Federalists felt that all levers of government could legitimately be used to advance and secure the political interests of their party. At a time when there was no real war, the Federalists fomented a public climate of wartime crisis. Their party pushed for military engagement on the side of Britain and against France and insinuated that Democratic-Republicans (as the Democrats were then known) were disloyal and possibly even treasonous on account of their well-known sympathy for French revolutionaries. At the same time, the Federalists worked to incite fear of immigrants, particularly the Irish, whom they tarred as alcoholic revolutionaries. Under President John Adams, the Federalists assumed sweeping powers to lock up and deport immigrants, but perhaps their most significant attempt to turn the legal system to political advantage was the passage of the Alien and Sedition Acts.
The Sedition Act is notable for its clarity of intent and is worth quoting at some length:
And be it further enacted, That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the Constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.
More than two dozen people were arrested under the Sedition Act, most of them prominent Democratic-Republican newspaper editors and writers. Some of them, such as Thomas Adams, the publisher of the Boston Independent Chronicle, spent several months in jail; he had accused President Adams of nepotism for sending his son as ambassador to France and had questioned the salaries paid to both. In the case of Thomas Adams and others, the truth of the assertions published was not accepted as a defense.
The bulwarks the system offered against political abuse were few and unreliable. They were: the notion of an independent, professional prosecutor, insulated from political direction; an independent judiciary; and a jury system. In the Federalist age none of these checks worked, because the prosecutors and the judges were loyal, committed Federalists, and they very effectively pressured and cajoled juries to do their bidding.
Still, the Federalists’ use of these tools had repercussions. Thomas Jefferson, eyeing the suicidal excesses of the Federalists, exhibited an interesting mixture of anxiety, confidence, and resolve in a confidential letter to his friend John Taylor:
A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to its true principles. It is true that in the meantime we are suffering deeply in spirit, & incurring the horrors of a war and long oppressions of enormous public debt. . . . And if we feel their power just sufficiently to hoop us together, it will be the happiest situation in which we can exist. If the game runs sometimes against us at home we must have patience till luck turns, & then we shall have an opportunity of winning back the principles we have lost, for this is a game where principles are the stake.
In 1800, Jefferson took the White House from Adams, and the Democratic-Republicans took a strong majority in the House of Representatives. That hold would endure for twenty years. Most historians today see the demise of the Federalist Party originating in a series of unpopular policies—including high taxation and the maintenance of a standing army—but its penchant for political prosecutions embittered the electorate in most places where it was pursued and proved decisive in alienating entire districts. Had it not been for political prosecutions, the Federalist Party might have survived.
The same could yet hold true for modern Republicans. History may view the Bush Administration’s transformation of the Justice Department as an aberration the voters will set right at the next election. There is an equally good chance, however, that Bush has reverted to the historical norm, that government of the people, by the people, for the people is the exception. After all, Federalist attitudes toward executive power have lasted far longer than the party itself. And for all his advocacy of a free press, even Jefferson advised the commencement of seditious-libel proceedings against certain political enemies, noting that “a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses.”
The next president can learn much, in any case, from how the Democratic-Republicans made robust use of executive power to right the wrongs they felt had been done to them. They quite reasonably had no confidence that the judiciary would undo on appeal the injustices perpetrated against Democratic-Republican leaders by Federalist prosecutors and trial judges. After all, most of the appellate judges were themselves still Federalists as well. So the two dozen Democratic-Republican leaders who had been jailed or convicted received pardons. Congress voted many of them apologies and compensation for their mistreatment. Federal prosecutors and judges who had participated in the excesses were investigated, and most prosecutors were replaced. This furnishes the most practical historical precedent for addressing the current abuses.
But the Bush Justice Department demonstrated its power in supporting a partisan electoral agenda and in outfitting the executive with extraordinary and extra-constitutional powers. Is it realistic to think that any new occupant of the White House would surrender those powers? The American historical experience on this point is clear: once a power or prerogative is successfully asserted by a president, his successors have generally guarded that power carefully, whether they make actual use of it or not.
The one tool that has been wielded successfully in the retrenchment of presidential power is impeachment. There are three noteworthy precedents. The first was the House’s resolution of censure and threat of impeachment against President James Knox Polk for having invaded Mexico. Congress became far more aggressive in the wake of this resolution, limiting Polk’s authority and making sure there were no more “strong presidents” before the Civil War. The second was the impeachment of President Andrew Johnson. The impeachment effort had its origin in the conflict between the radical Republicans and the moderate and conciliatory politics of Johnson, but it also should be seen as a curtailment of the dramatically enhanced presidential authority asserted by Abraham Lincoln—precedent that routinely is invoked by the Bush Administration today. Johnson was impeached by the House and acquitted by the margin of a single vote in the Senate. The third case was the Watergate-era impeachment effort directed against Richard Nixon, which focused on Nixon’s claims to extraordinary war-making powers, his claims to executive privilege, and the underlying offenses connected to the Watergate cover-up. The House Judiciary Committee voted 21–17 to bring articles of impeachment against Nixon, who then resigned to avoid a certain conviction.
Bush’s assumption of presidential authority includes assertions of executive power at least as expansive as those put forward in the Polk, Lincoln, and Nixon presidencies. Of the three, Lincoln alone could convincingly claim as justification an existential threat against the country. Bush attempts to copy Lincoln’s claim, but his efforts are unconvincing.
It is improbable that any contender who prevails in the 2008 presidential election will renounce the Bush model of a redefined presidency. A newcomer will likely differentiate his (or her) policies on a number of points, pulling back somewhat from positions (such as the presidential right to torture or wage preemptive war) that have drawn sharp criticism. But these changes will be introduced as a matter of presidential policy, not because the president is bowing to law defined by Congress or to constitutional constraints.
Our Constitution provides a mechanism for countering transformational excess, but the people’s representatives thus far appear to have decided that the impolite process of impeachment is only for presidents who have affairs. Given this failure of will, we must be prepared to accept a changed system in which the will of the people is subsumed by good manners and fearful politics. As long as this new democracy prevails, little will matter beyond the will of the president.
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