No Comment — March 30, 2009, 11:39 am

Five Steps to Fix the U.S. Department of Justice

On March 27, Eric Holder was formally installed as attorney general at the Justice Department. The event got little attention at the time, but it’s worth watching in its entirety or at least investing a few minutes to read the remarks offered by President Obama. The boisterous reception the Justice employees gave Holder and Obama stands in very sharp contrast with the much more muted receptions of the two previous installations, of Alberto Gonzales and Michael B. Mukasey. From Obama’s remarks:

Our laws are only as effective, only as compassionate, only as fair as those who enforce them. In the end, our union is only as perfect as we are willing to work for. It endures only to the extent that we are willing to fight for the ideals on which it is based–to do our part, as generations before us, to breathe new life into them with the more enlightened understandings of our time. That has always been the core mission of this department. It is the story told by the murals that adorn the walls of your headquarters, installed years ago to illustrate the power of law to improve our lives.

Now I haven’t yet seen it yet myself, but I’m told that one of these murals, painted back in the 1930s, depicts black children and white children attending school together, sitting side by side in the same classroom. This was years before Brown vs. Board of Education, at a time when Washington, D.C., was still a segregated city. It is, to this day, a moving reminder that sometimes, law lags behind justice–and it is up to us to bridge that distance.

The image that Obama takes, of a WPA mural that reflected a concept of justice that ran far ahead of that actually shared at the Department at the time, was very striking. The murals can be viewed here. Indeed, the Justice Department has for eight years operated at odds with the nation’s shared notions of justice, a challenging legacy for a new attorney general.

Eric Holder faces a daunting task. If he operates on autopilot, he will be a tragic failure. The current dire situation calls for energetic leadership. Much of the work to be done involves restoring a commitment to justice that disappeared in a sea of partisan political intrigue over the last eight years, in which three different men served nominally as attorney general while the department was run in fact out of the office of Karl Rove in the White House. Bush left behind a vast panorama of wreckage. Holder’s work must start with a clean up.

These are the five steps I’d take to fix the Justice Department:

  1. Remember that you’re the people’s lawyer. You owe them a duty to operate subject to public scrutiny and accountability. Certain investigatory and prosecutorial functions will, of course, be confidential, and rightly so. But for eight years, the presumptions of prosecutorial secrecy were used repeatedly to cloak conduct that would have immediately shamed the department had it been known. Eric Holder must demonstrate the department’s accountability by moving immediately to make public the secret opinions crafted by the Office of Legal Counsel, by pledging to make public the legal policy guidance he gives to the president, and by cooperating with Congress so it can properly exercise its oversight function.

  2. Instigate a thorough review of political prosecutions, overturn prosecutions that were abusive, and take appropriate disciplinary actions with respect to those who instigated them. Following the path of the lowliest authoritarian dictatorships, the Bush Administration used the Justice Department to bring criminal prosecutions against political adversaries for partisan political purposes. That’s no longer debatable. It’s an established fact. Yet the Justice Department has yet to lift a finger to correct these abuses. Victims of the worst of these prosecutions languish in prison, and the prosecutors who disgraced their offices remain on the job—indeed, this weekend I read that one was just promoted in an act of calculated “burrowing.” When Thomas Jefferson came to office following the elections of 1800 he was forced to deal with a situation almost exactly like the one that Holder now faces. He called the two-year terror-spree of political prosecutions by the Federalists the “Reign of Witches.” Jefferson and his attorney general quickly reviewed the abusive prosecutions, terminated cases, and issued pardons to the substantial number of people who had been wrongfully convicted in our still highly imperfect criminal justice system. Eric Holder would do well to study the precedent Jefferson furnished. He needs to take this legacy of abuse of the powers of the Justice Department and confront it directly.

  3. Send an unequivocal message to the new U.S. attorneys: no politics on the work site. The process of appointing new U.S. attorneys is lagging, and Holder needs to get on top of it. The process of political patronage appointments needs to be hemmed in—President Obama and Attorney General Holder need to ensure that the qualities that go into a fair, effective, and conscientious prosecutor top any political considerations. After the new team is in place, Holder should follow the tradition of bringing them all to Washington. He should speak to them of their duties, taking as a model the great speech that Robert H. Jackson delivered in 1940, “The Federal Prosecutor.” He should offer public apologies on behalf of the department to the nine U.S. attorneys who were improperly cashiered by Alberto Gonzales, and he should offer at least a couple of them the opportunity to speak (John McKay and David Iglesias would be good candidates). This is the most graphic way I can imagine of sending a clear message that the abuses that occurred over the last eight years will not be tolerated, and encouraging the new U.S. attorneys to show the professionalism, independence and integrity that McKay and Iglesias did. It would also be a great idea if at least one of the nine were reappointed as a U.S. attorney—Daniel Bogden in Nevada would be a good candidate.

  4. Fix the department’s ability to fix itself. The Bush Administration was extremely cunning at disabling self-repair and self-investigative functions across the government and doubling down on whistleblowers. Nowhere was this more evident than at the Justice Department where evidence of serious wrongdoing was repeatedly raised, often by Justice employees, only to be swept under the carpet. The department’s old watchdog, the Office of Professional Responsibility, has repeatedly disgraced itself and even in the handful of cases in which it has acted, the time it takes suggests that the guard dog has gone to sleep. (Look at the Yoo/Bybee probe, which is still incomplete after four years.) Holder should dissolve OPR and assign its functions to the Office of Inspector General, which has discharged its duties ably and in a timely fashion. This restructuring would also end the internal turf warfare which has worked to the benefit of ethics-challenged prosecutors and political intriguers.

  5. Pay special attention to the most badly abused sections: Namely Civil Rights, especially the Voting Rights section, Public Integrity and the Office of Legal Counsel. The morale in these groups is particularly low, but their functions are essential. Each of them needs a special turn-around program that should start with the installation of dynamic, highly qualified leadership that enjoys the respect of the public and is actually committed to performing the essential mission of justice. The team of Dawn Johnsen, David Barron, and Marty Lederman–who are going to OLC–reflect just the right blend of brains and integrity. We need more like them.

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