Why the Justice Department will never be apolitical.

The law, lawyers, and the court.
March 14 2007 6:46 PM

Politics as Usual

Why the Justice Department will never be apolitical.

(Continued from Page 1)

What we are seeing played out now in Congress and in the pages of our newspapers is a public process of sorting out responsibility and accountability. That's as it should be. Imagine how that process would be confounded if the attorney general answered to nobody.

3. Elections, press coverage, and congressional oversight are the least bad way to maximize accountability and control abuse.

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The cliché goes like this: Sunlight is the best disinfectant. And as LBJ's attorney general, Katzenbach, put it in 1974, oversight by the media, Congress, and the voting public is a far less dramatic way to expose and deter DOJ wrongdoing than fiddling with the existing constitutional mechanism—whether that fiddling means decreased executive power of the Justice Department or increasing congressional oversight.

As Katzenbach said at the time, "There are, of course, opportunities in government for corrupt activities … broadly defined as political favoritism, using public moneys for partisan politics, rewarding political friends and punishing political enemies, through the use of office and the public purse. There is no way I know of to ensure that political power is totally immune from abuse. The best we can do, or hope to do, is to check the exercise of power, expose it to scrutiny, and to maintain a political ethic which makes the exercise of public power a public trust."

The political disinfectant process is often slow and messy. But it avoids the problem of law enforcement that is not responsive to the last election and not fixable by the next one.

4. Congress, too, poses a danger to the independence of U.S. attorneys. 

A subtheme in the U.S. attorney controversy has been the potentially improper influence of members of Congress on law enforcement. Many in 1974 thought this was a greater danger than political influence from the White House and attorney general. U.S. attorneys made independent of the executive branch might, as Burke Marshall put it in 1974, "come to be primarily responsive to permanent power centers in Congress, particularly those who control appropriations—a process and chain of responsibility that does not seem to me on experience to have emphasized impartial, effective and responsible law enforcement." Or they might come under the thumb of home-state elected officials. As Sorenson said in the post-Watergate debates, "By diminishing if not eliminating the political patronage flavor of these offices, by making their occupants less politically beholden to their senators and local party officials and thereby more likely to stay for longer periods of service, the quality and consistency of law en­forcement will be increased."

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The chorus of liberal opposition killed Ervin's bill. But the events of the past few weeks have made clear that we are still living with the tension that has always inhered in the Justice Department's twin role of carrying out the president's policies and upholding the rule of law. The problem is the same as it was in the 1970s: How can we be sure that a Justice Department necessarily embedded in politics does not use its power to promote partisan causes, as is alleged to have occurred here?

The best alternative to radically reconfiguring the Justice Department as a politics-free zone, or to directly electing the attorney general, is to have confidence in the system we see playing out now—that is, the system that already exists: Let's allow the Congress, the press, and the people to be the check here. Let them determine whether and when the line between politics as usual and improper politicization has been crossed. This is the genius of a system of checks and balances in the first place: If politics turns out to be the illness here, politics will also prove the cure.

Jack Goldsmith teaches at Harvard Law School and served as an assistant attorney general in the Bush administration. Dahlia Lithwick is a senior editor atSlate.

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