The endless controversy surrounding the independence of the federal justice system during the Bush years reared its ugly head again last week. The Justice Department’s Inspector General and Office of Professional Responsibility issued a blistering report concluding that political pressure led to the dismissals of several federal prosecutors in 2006.
As a former assistant U.S. Attorney, it’s disheartening to see how this conduct has damaged the remarkable progress made during the last quarter of the 20th Century to de-politicize the Department of Justice. This progress was reassuring for those us who took pride in the independence we enjoyed from politics and the executive and legislative branches. We felt immune from partisan pressure on employment, policy and prosecutions. Sadly, those principles have taken a severe beating.
The history of the Justice Department has not always valued political independence. As late as the 1970s, many of the 93 United States Attorneys’ Offices continued to hire and fire assistant federal prosecutors on a largely political basis. Offices employed the “broom” policy. A change in the political party in the White House inevitably resulted in the “brooming” out of prosecutors hired under the previous United States Attorney and the consideration. Political connections mattered. After several decades of improvement of this atmosphere, the politicized Bush Justice Department has taken several steps backward, and a result, damaged the public’s trust.
Certainly, for more than a century many effective prosecutors served under this system, but the practical downside was stretches of inefficiency during a political turnover while largely young and inexperienced hires learned the ropes. The terms of these attorneys were usually limited to two or three years. Consequently, a multi-year investigation of a complex federal crime was extremely unlikely, and the great majority of cases involved reactive offenses. The de-politicization of the hiring process not only provided continuity for investigations and prosecutions, but ushered in an era of career prosecutors who developed the expertise to handle increasingly complex cases.
No one expected that this change would affect the selection of United States Attorneys. The Constitution and federal statutes make clear that they are appointed and serve at the pleasure of the President. Still, some recent Presidents have left in place exceptional United States Attorneys appointed by the previous administration. Moreover, the involvement of special search committees has increasingly emphasized experience and competence as important factors in the process.
Even before this week’s report, the Justice Department’s practices were highly suspect. This past July we learned that, contrary to federal law and Justice Department policy, politics had been a primary influence in the hiring of many career prosecutors and immigration judges. An Inspector General’s report found that The Department’s White House liaison officer Monica Goodling used politically based evaluations of the applicants’ Republican and conservative credentials and loyalty to make hiring decisions. Although Ms. Goodling worked out of his office, Attorney General Alberto Gonzalez was strangely detached from this activity.
This week’s Inspector General’s report extends this partisan meddling from employment matters to policy and prosecution decisions. Midterm loyalty tests by the political operators of the White House have severely damaged the integrity and credibility of the Justice Department. Their disingenuous explanations and the Attorney General’s seemingly conscious avoidance of the truth has only served to further tarnish the Department’s reputation.
Attorney General Michael Mukasey has an opportunity to blunt some of these perceptions and reverse, at least to some extent, the ugly trend toward a return to a politicized Justice Department. The appointment of the well respected federal prosecutor Nora Dannehy to continue the Inspector General’s investigation is a step in the right direction. The Attorney General’s insistence that she have the authority to compel production of White House documents and to subpoena administration officials such as Karl Rove will be critical to this objective.
Whether Attorney General Mukasey fully supports the investigation will go a long way in determining the current credibility of the inspiring words carved on the Justice Department Building that we enjoy a government of laws and not of men:
No Free Government Can Survive that is not
Based on the Supremacy of the Law.
Where Law Ends, Tyranny Begins.
Law Alone Can Give us Freedom.
