The U.S. Justice Department faces an internal crisis in morale and a public crisis in credibility. And while every Justice Department pushes its political agenda alongside its lofty goals of upholding the law, the Bush Justice Department sometimes pushed its political agenda in direct violation of the law. The question now is whether Eric Holder, Barack Obama's pick for attorney general, can fix it.
Nobody knows better than Holder that the line between law and politics at DoJ can be blurry. The one stain on his otherwise gilded legal career was the role he played, as No. 2 in the Clinton Justice Department, in the pardon of fugitive commodities trader Marc Rich during Clinton's last hours. Holder didn't give the pardon application much thought before concluding that he was "neutral leaning towards favorable." Clinton relied in part on that advice in granting the pardon. Holder later testified before Congress that he'd made a mistake.
What Holder stands to inherit from Michael Mukasey and his predecessor Alberto Gonzales is not a Justice Department that was slightly confused about where the law began and politics ended. If confirmed, he will take over an institution where, at least in recent years, politics sometimes had no end. The department became fodder for late-night TV monologues in 2007 when former Attorney General Alberto Gonzales and his staff flimflammed their way through congressional hearings about the partisan firings of eight U.S. attorneys. Those independent prosecutors were let go for failing to be—in the parlance of Gonzales' underage underlings—"loyal Bushies." More than a dozen officials resigned in the wake of that scandal.
Things at Justice worsened with internal reports finding the department had hired career civil servants, law student interns, assistant U.S. attorneys, and even immigration judges based on their loyalty to the GOP. Secret memos produced by the department's Office of Legal Counsel authorized brutal interrogation techniques and warrantless government eavesdropping. The subordination of law enforcement to politics led to the flight of career attorneys in the department's Civil Rights Division and especially the Voting Section, where by 2007 reportedly between 55 percent to 60 percent had transferred or left the DoJ.
If the rot at Justice could have been cured by simply replacing Gonzales, the appointment of Michael Mukasey, a respected retired federal judge in 2007, might have been enough. It wasn't. To be sure, Mukasey said noble things about the evils of torture and made moves toward disentangling the department from the White House. But more often than not, Mukasey declined to lance the boil. He refused to call water-boarding torture. He insisted no crimes were committed when department officials violated civil service laws. And he criticized those seeking accountability for the architects of the administration's torture policy as "relentless," "hostile," and "unforgiving." Mukasey collapsed while giving a speech this past week, but thankfully the incident seems not to have been serious.
Perhaps the most important quality Eric Holder would bring to his new position is his knowledge of the Justice Department and Washington—he knows both inside and out. In addition to serving as a judge in the District of Columbia, Holder was the top federal prosecutor for the District and served in the DoJ's Public Integrity Section, prosecuting government corruption. Gonzales came to the job with no understanding of the department. He seems never to have understood that at some point along the way, he had to become the people's lawyer, as opposed to the president's.
Everybody has advice for Holder, starting with shuttering Guantanamo and repairing detention and interrogation policies; recalibrating the legal limits on information-gathering by intelligence agencies; doing away with provisions of the Patriot Act that encroach on civil liberties; and restoring the integrity and independence of the Office of Legal Counsel, which advises the president on the lawfulness of a proposed action. At a speech he delivered last June, Holder condemned the Bush administration for abusing prisoners, violating the Geneva Conventions, and authorizing warrantless surveillance on Americans, promising that "we owe the American people a reckoning."
That raises the dilemma Holder will face in overhauling the Justice Department: Does the reckoning owed to the American people come with investigations, retribution, and punishment for those who authorized the lawbreaking? Holder faces tremendous pressure from congressional Democrats and civil liberties groups to go after those who authorized eavesdropping and torture. He will face as much pressure from the other side to turn the page and move on, letting bygones be bygones.
Members of Obama's transition team have recently suggested that the new Justice Department may opt to do just that. Presumably they will allow investigations to continue, and none of this would foreclose a truth commission. And as professor Scott Horton noted last week, the new Justice Department should probably not be investigating the old Justice Department in the first place.
It should not surprise anyone if Eric Holder ultimately decides that the best way to repair the Justice Department will be to look beyond the folks who wrecked it. Former Attorney General Robert Jackson famously told the nation's top prosecutors that a great U.S. attorney was someone who "tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes." The folks who want to condemn Eric Holder based solely on a mistake over Marc Rich might want to take Jackson's words to heart as well.
A version of this piece also appears in this week's issue of Newsweek.