No Comment — November 17, 2007, 8:28 am

Change or Continuity for the Bush Justice Department?

On November 14, Michael B. Mukasey was sworn in by Chief Justice Roberts at a festive Justice Department ceremony. Former Attorneys General Thornburgh and Ashcroft were present, but curiously not his predecessor, Alberto Gonzales. The last attorney general is now the target of a multi-count criminal investigation, and chose the date for the launch of his legal defense fund. Still, the nation’s, and the Justice Department’s, eyes were on Mukasey that day. And there was one fundamental question hanging over the proceeding: Will Michael Mukasey put an end to the politicization of the Justice Department? He made that pledge in the confirmation process, and it’s plain that a number of senators believed him—including many who, in the end, voted against him.

“We do law, but the result is justice,” Mukasey said in the signature line from his remarks.

As Mukasey assumes control, there is plenty of reason for concern about his ability to rein in the process of partisan exploitation of the administration of justice that his predecessors unleashed. And there is every reason to believe that the White House does not want him to do this, and indeed that it will obstruct any effort he undertakes to do so.

Political Prosecutions Still Alive at Justice
Three snapshots from the field that give a glimpse of what Mukasey is up against:

  • In Mississippi, U.S. Attorney Dunnica Lampton, who brought two politically inspired prosecutions against the state’s Presiding Justice, Oliver Diaz, which Lampton openly acknowledges were “weak” and which ended in acquittals, appears to be busily preparing a third attack on Diaz—he told a reporter in Jackson that he would soon “have more for Diaz.” In an interview with a local paper, he continued to attack the judge through vague innuendo, suggesting that he was guilty of unspecified crimes—statements which violate basic rules of prosecutorial ethics and DOJ guidelines for U.S. Attorneys. To most observers, the judge’s offense is very clear—he had the audacity to run against, and defeat, Lampton’s protégé in a contest for the state’s high court. Some grudges are slow to die.

  • In Alabama, U.S. Attorney Leura Canary launched the nation’s highest profile political prosecution—of former Alabama Governor Don E. Siegelman, the state’s most prominent Democrat. When defense counsel protested that she was married to the campaign manager for Siegelman’s opponent, she first resisted and ultimately, under pressure from the Justice Department, pretended to recused herself. But evidence of her involvement in the case continues to this day. Now Mrs. Canary is again busily pursuing a criminal investigation targeting individuals who have raised serious charges against another of her husband’s high-profile political clients. Details of this matter are expected to emerge in the coming week.

  • In Michigan, the Justice Department now seeks a gag order against one of its targets in an overtly political campaign against trial attorneys who raised money for Democratic presidential nominee John Edwards. Put the First Amendment aside, argued the Department, and forbid the defendant from laying out the case that the prosecution is politically motivated. The Department says these are “outlandish claims.” However, other observers would reserve the word “outlandish” to describe a Justice Department campaign targeting at least six trial attorneys who raised money, in which hundreds of employees were deployed, on the personal guidance of the Attorney General, to raid law offices and seize all politically oriented campaign information. The Justice Department continues vehemently to resist a probe or fair disclosures about its conduct and who is directing it. It cannot allay concerns that Republican political operatives were deeply involved.

The Renewed OPR FISA Probe
Shortly after Mukasey assumed the helm, the Justice Department announced that the probe of its Office of Professional Responsibility (OPR) would resume a probe into the propriety of advice given with respect to warrantless surveillance in connection with the FISA statute. This probe had previously been stopped as a result of intervention from the White House. Democrats in the Senate were quick to praise Mukasey for this step, but Mukasey himself made clear that the decision was not his—it had apparently already been taken.

Even apart from the fact that this was not Mukasey’s decision, there are other reasons not to regard this step as something terribly meaningful. One, as Prof. Marty Lederman has pointed out, is that the scope of action cut out for OPR is very narrow: it focuses on lapses in professional ethics. Lederman also feels that OPR will adopt the ethically dubious view that Justice lawyers are always free to dispense advice that their clients want, even when that advice is wrong, without sanction. This is not consistent with a fair reading of ethics standards (as Prof. David Luban notes), but it may in fact reflect the rather Byzantine perspective recently taken by OPR.

OPR has historically demonstrated an appetite for handling cases involving senior political appointees. For instance, it undertook and professionally discharged an investigation into William French Smith’s use of DOJ limousines to pick up dry cleaning and transport his wife. Still most of the cases of this sort that OPR has managed have entailed minor pecadillos, not serious policy decisions that impact the Administration at the highest level.

And in the last six years, OPR’s independence and ability to tackle politically sensitive matters is being widely questioned. A good starting point is the case of Jesselyn Radack, a former OPR lawyer, who dispensed absolutely correct advice in connection with the John Walker Lindh case (a matter in which the ethics of prosecutorial conduct is generally judged to have been atrocious, starting with the decision to disrespect Radack’s advice). Radack was fired and then persecuted for years as Justice officials sought her punishment by bar authorities and pressured her new employer to fire her as well (a solid recounting of the story can be found in this American Lawyer piece.) The Radack case pointed to new, Orwellian winds blowing inside of OPR.

In a series of other cases which I have been studying and about which I will be writing in a feature piece, OPR has battled aggressively with the DOJ’s highly regarded Inspector General to run politically sensitive investigations. When the OPR wins out in this struggle, the same fact pattern emerges: the cases are not investigated (at least as best I can see: documents are not requested, obvious witnesses are not contacted), no reports issue. The OPR appears to be acting as a “deep freeze” for politically sensitive matters. They are sat upon. This fits a pattern of comatose oversight that is common to the Bush Administration.

Consequently, I do not expect the OPR’s FISA probe to go anywhere. In fact, I was puzzled when the White House stopped it to begin with.

Bush, the Movement Conservatives and Justice: The Pact
But a far more serious concern from Mukasey’s first week goes to nominations to fill the numerous senior vacancies in the Department of Justice. A well-placed source informed me at the time of Mukasey’s hearing that President Bush, who is deeply committed to “keeping the base happy,” had struck a compact of sorts with disgruntled “movement conservatives” who wanted to see Ted Olson become attorney general. (1) They would get a private meeting with Mukasey (that occurred, and has been reported on in some more depth in a recent column by Sid Blumenthal.) (2) Bush would personally address the Federalist Society’s annual meeting (that also occurred). And (3) the major open vacancies at the top of Justice would be filled with “movement conservatives,” limiting the risk that Mukasey would be able to set much of a new course.

The White House’s announcement on Thursday of five new appointments to the Justice Department appears to me to be the fulfillment of the third pledge. I haven’t had much time to study the individuals in question, but at first blush, most appear to be just what was promised: a “movement conservative.” That phrase is used to refer to an individual who is highly ideological, usually associated with the Federalist Society or a similarly partisan organization, and who is deeply engaged in partisan politics. The probe of the U.S. Attorneys firings revealed a series of criteria that Rove, Miers and their counterparts at Justice were using to pick new U.S. Attorneys. Will they be “loyal Bushies?” And here were the criteria: are they party members? Do they work in election campaigns? Do they give money to Republican causes? Are they members of the Federalist Society, or a similar party organization, with a track record of active participation? For whom did they clerk? This was a test designed to identify persons willing to betray their office for political purposes. And looking over the list of nominees, it is hard to resist asking whether the same criteria were applied to pick candidates that Kyle Sampson would have discussed with Karl Rove. Here are the nominees:

  • For Deputy Attorney General, the number two slot: Mark R. Filip. He has a long record of political engagement in electoral trenches for the Republican Party (as the Chicago Tribune reports, he volunteered to work on the Bush-Cheney Florida vote litigation in 2000, for instance). He served as Vice President of the Federalist Society chapter at his law school. He clerked for Antonin Scalia and is close to Solicitor General Paul Clement. Critics of the Bush Justice Department regularly cite a secret subterranean network of former clerks of three judges (Scalia, Thomas and Silberman) who are highly partisan political ideologues, and who routinely shape policy and decisions outside of the formal channels of bureaucratic communication.

  • For Associate Attorney General, the number three slot: Kevin J. O’Connor. He was U.S. Attorney in Connecticut, who came in to serve as the attorney general’s chief of staff at the height of the scandal surrounding Gonzales.

  • To head the highly embattled Civil Rights Division: Grace Chung Becker. She has a long track record of political partisanship, especially advocating Republican Party positions on voting-rights issues. Even while serving at the Justice Department (she is at the Civil Rights Division now), she has continued as a member of the Republican National Lawyers Association, where she is listed as an active contact on major matters. At Justice, she would have responsibility for addressing questions relating to voting fraud, caging, voter dilution on which her political organization, is actively engaged. Her attitudes can also be gauged from a speech she delivered a month ago to a bar association in which she said “it was an ‘exciting’ time to work in the Civil Rights Division because the Attorney General [Gonzales] made civil rights a top priority within the Department of Justice.”

  • To head the Civil Division: Gregory Katsas. Mr. Katsas also has a long track record of engagement in G.O.P. politics, and clerked for Justice Thomas. He is a principle architect of the Bush Administration’s legal policies relating to Guantánamo. He advocated and continues to strongly defend the suspension of the writ of habeas corpus–as he told the Chicago Tribune last month, “We think it’s defensible on the law and we think it’s defensible on the basis of national security.”

I wish Michael Mukasey every success at Justice and still have confidence in his abilities. However, my expectations have now been greatly diminished. The question is “change or continuity at the Department of Justice.” And right now, notwithstanding a new attorney general with strong credentials and a demonstrated commitment to integrity, all the indicators are pointing to more of the same.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 167 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

November 2017

Bumpy Ride

Bad Dog

= Subscribers only.
Sign in here.
Subscribe here.

Preaching to The Choir

= Subscribers only.
Sign in here.
Subscribe here.

Monumental Error

= Subscribers only.
Sign in here.
Subscribe here.

Star Search

= Subscribers only.
Sign in here.
Subscribe here.

Pushing the Limit

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Pushing the Limit·

= Subscribers only.
Sign in here.
Subscribe here.

In the early Eighties, Andy King, the coach of the Seawolves, a swim club in Danville, California, instructed Debra Denithorne, aged twelve, to do doubles — to practice in the morning and the afternoon. King told Denithorne’s parents that he saw in her the potential to receive a college scholarship, and even to compete in the Olympics. Tall swimmers have an advantage in the water, and by the time Denithorne turned thirteen, she was five foot eight. She dropped soccer and a religious group to spend more time at the pool.

Illustration by Shonagh Rae
Article
Star Search·

= Subscribers only.
Sign in here.
Subscribe here.

On December 3, 2016, less than a month after Donald Trump was elected president, Amanda Litman sat alone on the porch of a bungalow in Costa Rica, thinking about the future of the Democratic Party. As Hillary Clinton’s director of email marketing, Litman raised $180 million and recruited 500,000 volunteers over the course of the campaign. She had arrived at the Javits Center on Election Night, arms full of cheap beer for the campaign staff, minutes before the pundits on TV announced that Clinton had lost Wisconsin. Later that night, on her cab ride home to Brooklyn, Litman asked the driver to pull over so she could throw up.

Illustration by Taylor Callery
Article
Monumental Error·

= Subscribers only.
Sign in here.
Subscribe here.

In 1899, the art critic Layton Crippen complained in the New York Times that private donors and committees had been permitted to run amok, erecting all across the city a large number of “painfully ugly monuments.” The very worst statues had been dumped in Central Park. “The sculptures go as far toward spoiling the Park as it is possible to spoil it,” he wrote. Even worse, he lamented, no organization had “power of removal” to correct the damage that was being done.

Illustration by Steve Brodner
Article
Bumpy Ride·

= Subscribers only.
Sign in here.
Subscribe here.

One sunny winter afternoon in western Michigan, I took a ride with Leon Slater, a slight sixty-four-year-old man with a neatly trimmed white beard and intense eyes behind his spectacles. He wore a faded blue baseball cap, so formed to his head that it seemed he slept with it on. Brickyard Road, the street in front of Slater’s home, was a mess of soupy dirt and water-filled craters. The muffler of his mud-splattered maroon pickup was loose, and exhaust fumes choked the cab. He gripped the wheel with hands leathery not from age but from decades moving earth with big machines for a living. What followed was a tooth-jarring tour of Muskegon County’s rural roads, which looked as though they’d been carpet-bombed.

Photograph by David Emitt Adams
Article
Bad Dog·

= Subscribers only.
Sign in here.
Subscribe here.

Abby was a breech birth but in the thirty-one years since then most everything has been pretty smooth. Sweet kid, not a lot of trouble. None of them were. Jack and Stevie set a good example, and she followed. Top grades, all the way through. Got on well with others but took her share of meanness here and there, so she stayed thoughtful and kind. There were a few curfew or partying things and some boys before she was ready, and there was one time on a school trip to Chicago that she and some other kids got caught smoking crack cocaine, but that was so weird it almost proved the rule. No big hiccups, master’s in ecology, good state job that lets her do half time but keep benefits while Rose is little.

Illustration by Katherine Streeter

Number of cast members of the movie Predator who have run for governor:

3

A Georgia Tech engineer created software that endows unmanned aerial drones with a sense of guilt.

Roy Moore, a 70-year-old lawyer and Republican candidate for the US Senate who once accidentally stabbed himself with a murder weapon while prosecuting a case in an Alabama courtroom, was accused of having sexually assaulted two women, Leigh Corfman and Beverly Young Nelson, while he was an assistant district attorney in his thirties and they were 14 and 16 years old, respectively.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Report — From the June 2013 issue

How to Make Your Own AR-15

= Subscribers only.
Sign in here.
Subscribe here.

By

"Gun owners have long been the hypochondriacs of American politics. Over the past twenty years, the gun-rights movement has won just about every battle it has fought; states have passed at least a hundred laws loosening gun restrictions since President Obama took office. Yet the National Rifle Association has continued to insist that government confiscation of privately owned firearms is nigh. The NRA’s alarmism helped maintain an active membership, but the strategy was risky: sooner or later, gun guys might have realized that they’d been had. Then came the shootings at a movie theater in Aurora, Colorado, and at Sandy Hook Elementary School in Newtown, Connecticut, followed swiftly by the nightmare the NRA had been promising for decades: a dedicated push at every level of government for new gun laws. The gun-rights movement was now that most insufferable of species: a hypochondriac taken suddenly, seriously ill."

Subscribe Today