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The President’s Lawyers

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At the peak of the Civil Rights movement, when my first thoughts about civics were formed, the Department of Justice assumed a promethean role. Most of Washington was, of course, mired in partisan bickering. But the Justice Department seemed to stand for something noble and grand, for a unifying set of principles that the nation could agree upon. It stood for the rights of the downtrodden, even when this was not a popular thing, and particularly where it was not. The Justice Department stood for the Rule of Law. This is not to say that political gamesmanship was absent, for it can never be driven entirely from a political institution. Still, the Justice Department seemed to stand majestically above most of the fray. That was the period of its institutional apogee.

Today, the Justice Department seems at the base of some dark crevasse, and when beams of light flow into it, what we see always causes a shudder. Far from being the gatekeeper of the nation’s legality and the custodian of its ethics, the Justice Department has emerged as the single most corrupt institution on the Washington landscape. The fact that Bush’s first attorney general will soon appear before Congress to explain how he secured a fantastically profitable no-bid contract from a particularly suspect and highly political U.S. attorney can serve as a summary for the entire sordid mess in which the department finds itself. And yet John Ashcroft looks like a moral paragon compared with what followed.

For the better part of a year, one attorney general and his deputies appeared before Congressional committees and had streaming lapses of recollection. The memory failures always had to do with political manipulations using the justice system. And when they were able to recall facts, their recollections turned out to be false on critical points. Public outrage forced the departure of the entire senior leadership of the department. And then a new team began to arrive.

The new team is busy making its mark today. It is much more intelligent, but no more honest than the team it replaced. The new team loves clever word play and gives us dark demonstrations of mental finesse–the finesse of an authoritarian genius. The president makes the law, they tell us, and the president can do no wrong. When the president adopts a view of the law, it is binding upon us. A seventeenth-century Royalist lackey would hardly manage a different set of formulations. So with bone-chilling calculus they rationalize torture, thwart the investigation of grave crimes and erect barriers against the discharge by Congress of its duty of oversight. In a word, they put personal fidelity to a president over duty to the Constitution and the basic principles on which our nation rests. They remove the frame from our Constitution and put in its place the notions of personal subservience that mark tyranny.

These lawyers have no fidelity to law. They are an army of termites working away at the infrastructure of our democracy. And the first institution they will yet bring to complete destruction is the Department of Justice.

The gravity of this betrayal cannot be overstated. And if there are two cesspools inside the Justice Department today, two centers of legal depravity, then they are the Office of Legal Counsel and the Public Integrity Section in the Criminal Division. Both operate to the same crude principle of politics trumps right. Both are working indefatigably to destroy the public’s confidence in the Department of Justice.

Today, the editors of the Washington Post chart the moral collapse of the Office of Legal Counsel:

Since its creation in the early 20th century, the Justice Department’s Office of Legal Counsel has been considered the legal conscience of the executive branch, rendering judgments to presidents and executive agencies about what the law allows. The OLC responds to executive branch requests for clarifications on everything from how to determine annual leave for federal employees to whether treaty provisions are constitutional and how torture should be defined. Its opinions are binding on the executive and essentially carry the weight of law. Past OLC opinions continue to have force when a new administration begins, just as Supreme Court decisions enjoy the force of law long after the justices who made them have left the bench.

Unfortunately, during the Bush administration, the OLC has become known as a partisan enabler of legally and ethically questionable presidential policies, including those involving the use of torture. The OLC’s decisions have eroded the legitimacy of the office and given legal cover to behavior that most Americans — and most lawyers — regard as improper.

The Post notes that the Office of Professional Responsibility (OPR) is looking into the ethics of the OLC and its memo writing. I have now examined a series of cases which have been reviewed by OPR. My review leaves me convinced that OPR is an emasculated, politically immobilized organization. It’s stunning that notwithstanding a firestorm that erupted over OLC and its torture memoranda four years ago, notwithstanding the fact that they were ridiculed and condemned by the organized bar in the United States and around the world, no action was ever taken. OPR’s inaction speaks volumes about its lack of motivation. Today OPR exists to provide cover—to say that something is being “looked at”—but there is no evidence of any life force within the organization. The Office of Inspector General is a positive contrast, but OPR seems to devote more energy to blocking the Inspector General from doing its work than it does to any internal investigation on its own. No one has confidence in OPR any more. That’s a simple fact. It has betrayed the institution it should have protected.

The Post is correct about the role of the OLC. It has become an enabler for corrupt, dishonest and criminal policies. Its opinions shield gross misconduct. It has become, as Jack Goldsmith suggested, a mill generating “get out of jail free” passes to the Bush Administration’s political hack retainers.

OLC is dragging the Justice Department into depths it has never known before. And its descent has not yet even begun to slow.

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