Balkinization  

Monday, March 19, 2007

Toward a language of analysis of the Department of Justice: Thoughts stimulated by the US Attorney imbroglio

Sandy Levinson

I have no doubt that improprieties occurred with regard to the purge of the eight US attorneys by Alberto Gonzales and his minions in the Department of Justice. No person can take at all seriously his initial protests that it was simply a standard-form “personnel matter” or that the purged officials were anything less than highly competent. Nor is it even clear that they did not adequately prove loyal to a general agenda of how best to use the Department’s scarce resources of prosecution, which is surely a consideration that can legitimately be taken into account. What is far more ominous, of course, is the evidence suggesting that they were fired because they were willing to enforce the law against Republicans (Carol Lam, in San Diego) or to hold back on bringing spurious charges against Democrats in New Mexico. In any event, one can surely be glad that Democrats now have subpoena authority to try to get to the bottom of what is a potentially major scandal and not merely a political embarrassment. All of this being said, though, one should recognize that we scarcely have a language adequate to describe what we want, and are willing to accept, from the Department of Justice, which is, after all, one of the Executive departments under the President’s direct control.

A basic trope of any liberal political order is “a government of laws and not of individual men and women.” Law, ideally, is supposed to operate to some significant degree independently of the ordinary political process. To put it mildly, a central question of American jurisprudence, especially since Oliver Wendell Holmes washed legal pieties with what he called “cynical acid,” has been to make sense of this notion, given the obvious fact, for example, that presidents pick nominees, and the Senate confirms or refuses to confirm, on political grounds. (There is nothing at all new about this: John Adams’ appointment of the “midnight judges,” including his nomination of John Marshall to become our third Chief Justice, is the first great example of partisan “court packing," which was followed by the Jeffersonian purge of the newly appointed federal circuit judges in 1802.) A standard defense of life-time tenure (which I severely criticize in my book Our Undemocratic Constitution) is that limitless tenure is necessary to achieve the all-important “judicial independence” necessary to assure adequate separation of the legal system from the more partisan political one. (I argue that an 18-year term for Supreme Court justices would be enough to assure such independence and to guard against obvious problems linked with life tenure that are spelled out in the book.)

But it is obvious that the kinds of concerns about judicial independence are present as well with regard to law-enforcement officials like Attorneys General and US Attorneys, whose decisions may have more direct import on the lives of Americans than those of Article III courts. It is ominous indeed to view such officials as simply part of a president’s partisan corps of public officials, committed to using all of the powers of the US government to achieve partisan political agendas. But it is also naïve to view such officials as having nothing to do with such political agendas. Indeed, one can make little sense of American history without taking into account the degree to which “politics” has always played a part in choosing law-enforcement officials. This is certainly true of what Jack and I have taken to calling "high politics," but it would be a mistake to ignore the extent to which "low politics" regularly rear their ugly head.

A basic problem is posed by the elemental fact there are far too many laws on the books to be enforced effectively; as economists tell us, we necessarily live in an economy of scarce resources, including resources for law enforcement, which means that decisions must inevitably be made about which laws, for which reasons, merit vigorous enforcement and which, in effect, can be more-or-less ignored even though they remain on the books. One may or may not agree with a preference for the enforcement of pornography laws as against, say, the anti-trust laws (see, e.g., the Ashcroft DOJ), but it is foolish to say that such choices don’t have to be made. To a significant degree, we don’t have an adequate public language to discuss the making of such discretionary decisions and the concomitant realization that no president, in the age of the modern administrative state with its myriads of laws and regulations, can be expected to “take care,” as the Constitution requires, that ALL laws are enforced. We rely on officials within the Justice Department to make such discretionary judgments all the time, and such decisions are inevitably political in some significant sense.

This means, ultimately, that the character of DOJ appointees is paramount, since there is no way to avoid giving them a great deal of discretion with regard to calling down the long arm of the law on potentially vulnerable citizens. At the very least, one might prefer that Attorneys General have some degree of independent stature and a demonstrated capacity for good judgment before their appointments. Liberals who properly denounce the appointment of such presidential cronies as Nixon's campaign manager John Mitchell or the egregiously sycophantic Alberto Gonzales should recognize that perhaps the most truly indefensible appointment in the past half century was Robert Kennedy, whose sole qualification for the job was his status as the President’s brother and the assurance that he would use the formidable powers of the Justice Department in ways that would never embarrass JFK. As it happens, Robert Kennedy, by most accounts, turned out to be an exceptional attorney general, but this is a happy accident rather than a defense of such patent nepotism. Indeed, subsequent law properly prevents such a nepotistic appointment, though one can well believe that it has done nothing to prevent the appointments of cronies. Interestingly enough, the two great exceptions to crony appointments in the past 50 years are Gerald Ford’s appointment of the truly remarkable Edward Levi and Bill Clinton’s appointment of Janet Reno. It is glaringly obvious that Clinton and Reno had almost nothing in the way of a personal relationship and that she ran a remarkably independent Department of Justice. One might well believe that Bush wanted to make sure this would not happen to his own administration!

Still, the basic problem remains that we don’t really have a language adequate to expressing the relationship we are willing to accept between partisan presidents and the law enforcement officials within the Department of Justice. It might prove illuminating to look at the way that other political systems have responded to the particular tensions presented by the appointment of law-enforcement officials. Israel, for example, for all of its immersion in almost hyper-partisan politics, nevertheless has maintained a relatively independent Attorney General’s office that has, indeed, regularly prosecuted Prime Ministers and Presidents of the State. On the home front, one might pay attention to the fact that Tennessee’s Attorney General is appointed by the Tennessee Supreme Court. Or a number of states, including, for starters, New York, Texas, and California elect the Attorney General entirely independently of the Governor. This has its own problems, but it certainly assures that the chief law-enforcement official is not simply a satrap of the chief executive of the state. (This also makes practical hash of the argument that a "unitary executive" is necessary to good government.)

It would be a source of great partisan satisfaction is Alberto Gonzales is driven from office and if the Bush Administration is further exposed as the menace to liberal values that many of us have long thought it to be. But we should recognize that the issues raised by the treatment of the US Attorneys go far beyond the particulars that fill the current front pagegs.

Comments:

I wonder the degree to which the scandal is--or ought to be--about the reason for the firing of the USAs, rather than the simple fact of their firing. The scandal behind many executive removals (I am thinking foremost of Richard Nixon's forcing out of Elliot Richardson and William Ruckelshouse and Andrew Johnson's firing of Edwin Stanton) cannot be separated from the context (the prosecution of Watergate and Reconstruction, respectively). Was the sin firing someone who, by law, was supposed to be independent--or the sin of undermining the Watergate investigation and Reconstruction? Here, too, what has given this scandal traction is not just the firing, but suspicions behind the motive--Carol Lam, prosecutor of Duke Cunningham; David Iglesias and John McKay, non-prosecutors of Democrats in AZ and WA, respectively; and H.E. Cummins, replaced by a Rove crony.

It is, in a way, analogous to "at will" employment generally, which has been cut back depending on the motive for the firing, most prominently in antidiscrimination law, but also in whistleblower protection laws. Compare this to, say, a President's attempt at firing an FCC commissioner for gross incompetence. The FCC is legally supposed to be more independent than the DOJ, but would we care as much?

The scandal, then, is not because the Justice Department ought to be "independent"--that is a debate for another day. The scandal is that it ought not to be using prosecution as a weapon against political opponents. If, say, Robert Gates were to be fired because he did not want to continue the Administration's torture policies, the scandal would not be that Bush did not have the right to replace his Secretary of Defense (but cf. the Johnson impeachment), but that Bush did not have the right to order anyone to commit torture. The firing is an otherwise legitimate means to the illegitimate ends.
 

I wonder the degree to which the scandal is--or ought to be--about the reason for the firing of the USAs, rather than the simple fact of their firing. The scandal behind many executive removals (I am thinking foremost of Richard Nixon's forcing out of Elliot Richardson and William Ruckelshouse and Andrew Johnson's firing of Edwin Stanton) cannot be separated from the context (the prosecution of Watergate and Reconstruction, respectively). Was the sin firing someone who, by law, was supposed to be independent--or the sin of undermining the Watergate investigation and Reconstruction? Here, too, what has given this scandal traction is not just the firing, but suspicions behind the motive--Carol Lam, prosecutor of Duke Cunningham; David Iglesias and John McKay, non-prosecutors of Democrats in AZ and WA, respectively; and H.E. Cummins, replaced by a Rove crony.

It is, in a way, analogous to "at will" employment generally, which has been cut back depending on the motive for the firing, most prominently in antidiscrimination law, but also in whistleblower protection laws. Compare this to, say, a President's attempt at firing an FCC commissioner for gross incompetence. The FCC is legally supposed to be more independent than the DOJ, but would we care as much?

The scandal, then, is not because the Justice Department ought to be "independent"--that is a debate for another day. The scandal is that it ought not to be using prosecution as a weapon against political opponents. If, say, Robert Gates were to be fired because he did not want to continue the Administration's torture policies, the scandal would not be that Bush did not have the right to replace his Secretary of Defense (but cf. the Johnson impeachment), but that Bush did not have the right to order anyone to commit torture. The firing is an otherwise legitimate means to the illegitimate ends.
 

Professor Levinson:

If you are proposing an independent Attorney General, you might as well add it to your list of proposed constitutional changes. Under Article II, the President is the sole executive and chief law enforcement officer. These US Attorneys are merely his employees who carry out his policies at his pleasure.

Given the US Attorneys serve at the President's arbitrary pleasure, I am unsure how his decision to fire one can ever be "improper" nevertheless illegal.
 

Quite candidly, I don't know what I would propose vis-a-vis the Attorney General. But, as with so much else about our Constitution, I think this is just another topic about which a long over-due conversation is necessary.

Perhaps the AG should require a 2/3 confirmation vote and, even more controversially, be unremovable except with the consent of Congress. I know this puts us back into the Tenure in Office Act, but I see nothing to be said, as a normative matter, for the proposition that the "unitary executive" must apply to every executive branch official in the modern leviathan state.
 

Professor Levinson:

I see nothing to be said, as a normative matter, for the proposition that the "unitary executive" must apply to every executive branch official in the modern leviathan state.

Let me suggest one.

The President is the only elective office in the Executive and, thus, the only one accountable to the People for the decisions of the Executive.

It is bad enough that we have a largely unaccountable bureaucracy because the Court allowed Congress to unconstitutionally delegate legislative and judicial power to the Executive. I would not want to repeat that mistake by making federal law enforcement similarly unaccountable.

An independent AG has some good arguments in its favor. However, I would want that office to be elected the way it is in many states.
 

It would certainly be interesting to see empirical work on what differences emerge in independently elected AG offices in the states as against those, like New Jersey's, where the governor, like the President, makes the appointment.
 

Professor Levinson,

In Minnesota, where there is an independently-elected AG, the primary object of those elected to the office appears to have developed into a springboard for running for governor.

I see no reason to suspect a national analogy would be any different.

It seems to me the problem we have at the present time is that the Congress illegally transferred to the President, via the renewal of the Patriot Act, the ability to bypass congressional oversight. Not that it amounted to much during the first 6 years of the Bush presidency, but that was, ultimately, corrected.

Does it not seem likely that repealing the law that encouraged this behavior would largely correct the problem?

Oh, and by the way, the AG's have been unsuccessful both times in recent years.
 

Just imagine electing the US Attorney General. Would candidates run in tandem with the Pres/VP of the same party? Or might an elected AG be from another party? Should the term run with the Pres/VP or perhaps be on an off-year basis? What would the campaigning be like? How partisan might it get?

If the AG should be elected, why not the Justices of the Supreme Court? I wonder what that campaigning might look like? Would there be a term to serve, and if so, how long?

No, amending the Constitution to elect the AG or the Justices doen't make sense. It makes better sense for voters to take care to vote for suitable candidates for Pres/VP who would then appoint (with the blessings of the Senate) suitable AGs and Justices. If the voters make a mistake, there is always impeachment.
 

"Bart" DePalma says:

Given the US Attorneys serve at the President's arbitrary pleasure, I am unsure how his decision to fire one can ever be "improper" nevertheless illegal.

No one said per se illegal or "improper". It's like firing a gun, "Bart", to use a situation you might be more familiar with. You may legally fire a gun under at least some circumstances, but that act of firing a gum may constitute a crime in others, or, at the very least, may be "improper".

Cheers,
 

The problem is not just that the executive bureaucracy has usurped legislative powers. Nor is it just that the executive has become so large as to be a dangerous leviathan, beyond what anyone in the 18th century could have anticipated. Both of these are true, but another issue is at work here.

When this country was founded, it was taken for granted that factions were inevitable in the legislature, but the President should be above partisan politics. Today we take for granted that the President is and should be head of his party. Put this leviathan executive, which has also usurped legislative powers, at the disposal of an unbashedly partisan leader, and the temptations for abuse are legion.

The Clinton Administration's last-minute changes in federal land regulations is one such example. The current Administration's attempts to turn corruption and vote fraud prosecutions into a partisan instrument is another. Neither was illegal, but both are disturbing.
 

Professor Levinson,

Pardon the semi-personal question, but of all alternatives to our federal government, the government of Texas is presumably the one you have the most first-hand familiarity with. (It is also the government of a large state, and large states are generally more difficult and complex to govern than small ones, and as such, more likely to have useful lessons).

What can you tell us about the government of Texas differs from the federal government, and how it works?
 

Given the US Attorneys serve at the President's arbitrary pleasure, I am unsure how his decision to fire one can ever be "improper" nevertheless illegal.

This statement seems to be utterly ridiculous. In fact, it seems so silly that perhaps I am missing something? If you abstract this, what you seem to be saying here, Bart, is that you can't imagine situations in which legal conduct is, nevertheless, improper. Am I wrong?
 

I also think that elected AG's would be a terrible idea for several reasons. The first reason is that I am skeptical of the inherent virtues of democracy. This is not to say I think it is bad but just to position myself counter to those who instantly assume that more democracy is a good thing.

Another reason is the possibility of a "Roy Moore" situation in which a legal officer sworn to uphold the rule of law specifically and purposefully defies it. Combine this with a country in which much of the population (I would say a very good majority) disagrees with many of the so-called (it doesn't matter by whom) basic tenets of our legal system and you have a recipe for disaster.

Still another reason to keep the current system is the possiblity for partisan wrangling between the President and the AG. This is a very serious possiblity and could lead to the kind of deadlock that exists in countries like Italy. That may sound like an extreme prediction but, in my mind, partisan elections inevitably invite the public to view the elected offical as a partisan player. Thus, the public might grow to be comfortable with what would now be viewed as a horribly partisan and unreasonable investigation or prosecution.

WIthout going any further, I think that you guys can see where I am going.
 

It would, I think, make little sense to advocate electing the US Attorney General. I'm not sure, though, that it wouldn't make a lot of sense to require a 2/3 vote for confirmation and thus, in effect, make it a more bi-partisan office than it now is. (One might suggest doing the same thing with federal judges as the best way to bring the appointments wars to an end.)

As to Texas, I'm truly embarrassed to say that I have no expert knowledge about Texas government. The one thing I can say with confidence is that the AG has his own political base and is scarcely the tool of the governor. Sometimes this seems to be a good thing, sometimes not so good. As suggested by an earlier post about Minnesota, Texas AGs seem to hope for higher office (e.g. current Sen. Cornyn, former Gov. Mark White).
 

To a significant degree, we don’t have an adequate public language to discuss the making of such discretionary decisions and the concomitant realization that no president, in the age of the modern administrative state with its myriads of laws and regulations, can be expected to “take care,” as the Constitution requires, that ALL laws are enforced. We rely on officials within the Justice Department to make such discretionary judgments all the time, and such decisions are inevitably political in some significant sense.

This is certainly true. But doesn't the law of obstruction of justice kick in if someone like Attorney General Gonzales fires someone like Carol Lam in order to distrupt or derail an investigation?

It seems like this would be separate and distinct from Gonzales merely "exercising his discretion."
 

Heckuva job, Bertie.
 

But doesn't the law of obstruction of justice kick in if someone like Attorney General Gonzales fires someone like Carol Lam in order to distrupt or derail an investigation?

There is no law of obstruction of justice when there is no law, when the White House is occupied by an administration that sends its minions to court to argue, with a straight face, lex est quod rex vult.
 

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