Politics as Usual
Why the Justice Department will never be apolitical.
Posted Wednesday, March 14, 2007, at 6:46 PM
The philosophical fight at the heart of the U.S. attorney imbroglio is a simple one: Everyone agrees that political appointments are political, but no one can decide how politicized the oversight of U.S. attorneys should be. Today's Wall Street Journal, casting the current firings as business as usual, claims that "when it comes to 'politicizing' Justice, in short, the Bush White House is full of amateurs compared to the Clintons." Former U.S. Attorney Harry Litman, by contrast, writes in today's Los Angeles Times about the "best traditions of the Justice Department" that "historically have insulated federal prosecutors from the pressures of partisan politics." And today in Slate, Linc Caplan argues that the Bush administration has abandoned longstanding norms that constrained the president's authority over law-enforcement decisions.
Is the typical Justice Department a cog in a partisan machine, or a pristine and impartial servant of The Law? The clamor for Alberto Gonzales' resignation brings with it calls for a restructuring of DOJ, to purge it of unseemly political influence. The San Francisco Chronicle advocates legislation "to make sure U.S. attorneys can't be bounced for political reasons." In Salon, professor Garrett Epps goes further, arguing that the attorney general should be elected directly by the people and made independent of the president. And at TPM, Reed Hunt suggests 10-year terms for U.S. attorneys.
The nation has been down this road before. We have debated the merits of a de-politicized Justice Department. And we have resoundingly rejected it.
In 1974, following Watergate, Sen. Sam Ervin, D-N.C., introduced a bill that would have made the Justice Department an independent agency, akin to the Federal Reserve. Headed by an independent attorney general who was appointed for a six-year term and could be removed by the president only for neglect of duty, the reconfigured agency was seen as the cure for the stain left by Watergate. "I have become convinced of the utter necessity of removing the department, insofar that it is possible, from the play of partisan politics," Ervin explained.
Ervin's bill was vehemently opposed and ultimately shot down by the American Bar Association and a dream team of Democratic Party legal-establishment figures, including the liberal legend Lloyd Cutler, who later became White House counsel for both Jimmy Carter and Bill Clinton; Lyndon B. Johnson's attorney general, Nicholas Katzenbach; constitutional scholar and former DOJ official Herbert Wechsler; Watergate's first special prosecutor, Archibald Cox; Burke Marshall, head of the civil rights division at the Justice Department under Bobby Kennedy; and John F. Kennedy speechwriter, adviser, and historian Theodore Sorenson. Their concerns are as pressing today as they were 30 years ago, and, in their own voices, below, they highlight one truth: The Justice Department is a deeply political institution, and so it should remain. Here is why:
1. Politics is inevitable in the enforcement of law (although politics and partisanship are not the same thing).
Among a president's many prerogatives is the right to set a legal agenda that is, by definition, political. Democratic presidents may emphasize civil rights cases, and Republicans may favor immigration cases. Democrats go easy on the environment, and Republicans are tough on crime and voter fraud. There is no such thing as law enforcement that is distinct from such political promises and priorities. As Cox noted in the 1974 debates, in most cases "the treatment of the law and facts simply cannot be separated from ideas of economic, social, or political—in the highest sense of the word—philosophy." He added that "the president should have the power and responsibility for making these decisions when they are important enough for him to make them, or at least should have someone who is attuned to his philosophy of government making them."
Permitting policy priorities to inform law enforcement is not the same thing as permitting partisanship to do so. Sorenson tried to unpack the difference when he explained that the attorney general's "decisions on the prosecution of cases or the employment and promotion of attorneys should be based on law and merit, and not on considerations of party affiliation, political image-making, or White House approval or influence." But Sorensen was savvy enough to know that "politics is necessarily tied up with policy, with one's concept of the public interest and response to the public will. A president who campaigns on a 'law and order' issue, or a narcotics or civil rights or organized crime issue, must not be confronted with an attorney general of sharply differing views appointed for a fixed term by his predecessor."
In other words, if you concede that the president sets the agenda when it comes to criminal priorities, you cannot favor hampering him with a chief lawyer who does not share those priorities or who affirmatively works to advance different ones.
2. Presidential control over the enforcement of law promotes political accountability.
The president is elected, and that means voters can hold him responsible for the actions of the attorney general. As Sorenson explained during the 1974 debates: "Law enforcement faces enough problems today without responsibility for it at the federal level being divided between the president's men and the attorney general's. Do not fragment that responsibility—fix it, on the President, where it belongs. How else can a President be held responsible for his own Constitutional obligation to take care that the laws be faithfully executed?"
Dahlia Lithwick writes about the courts and the law for Slate.
Jack Goldsmith, an assistant attorney general during the Bush administration, teaches at Harvard Law School and is a member of the Hoover Institution's Task Force on National Security and Law.
Photograph of U.S. Attorney General Alberto Gonzales by Win McNamee/Getty Images.