Election 2008: Restoring Confidence in the Justice Department

By Laurie Levenson , JD, Loyola Law School

A challenging road awaits our next president. In the last seven years, the Department of Justice (DOJ) has suffered serious blows to its reputation and morale. Numerous scandals have rocked the DOJ, ranging from memoranda authorizing torture during interrogations to the DOJ’s efforts to continue an illegal National Security Agency wiretapping program. Just this year, the controversial firings of nine United States attorneys generated headlines across the country and brought the entire DOJ under public scrutiny. And recently, former Attorney General Alberto Gonzales resigned amid allegations that he had lied to Congress and possibly obstructed justice by attempting to influence federal prosecutors in ongoing investigations. As a result, there has been a mass exodus of career federal prosecutors throughout the country. To put it mildly, it has not been a banner period for the DOJ.

The next president will face many challenges in seeking to rehabilitate the DOJ. First and foremost, the president will need to depoliticize the work of the attorney general. To do so, the president must appoint an attorney general who understands that his or her allegiance is to the American people, and that he or she does not serve as the president’s personal counsel. Similarly, the president and DOJ must give United States attorneys the independence to pursue cases against either political party when there are legitimate grounds for doing so.

Second, the president needs to appoint an attorney general who has credibility with lawyers and the courts. In recent years, there has been a running battle between the DOJ and lawyers’ groups such as the American Bar Association (ABA). The ABA has challenged the DOJ’s efforts to force lawyers to report on misconduct by clients because the ABA fears that such a requirement will interfere with the attorney-client relationship. The next attorney general must develop a cooperative working relationship with the ABA and other lawyer organizations.

Third, the next president must be willing to step back and reevaluate the DOJ’s approach to the “War on Terrorism.” With the passage of the USA PATRIOT Act and new regulations, powers that previously belonged to the courts—such as the rights of authorizing sneak-and-peek warrants, monitoring attorney-client conversations, authorizing roving wiretaps, sharing grand jury information, gaining access to bank and library records and computer-use information, and certifying illegal aliens as terrorist threats—have shifted to the executive branch. The DOJ must recognize the vital role that the courts play in balancing security needs versus Americans’ privacy rights.

Fourth, the next president must reaffirm the U.S. government’s commitment to its international legal obligations and to its duty to uphold and adhere to the tenets of the Constitution. The current administration has repeatedly taken the position that the president, as commander-in-chief, can make decisions that are not subject to judicial review. The current administration has argued that enemy combatants should have no access to the courts. It has further argued that these individuals are not entitled to any protections under the Geneva Convention.

Fifth, the next president will have to purge the criminal justice system of any semblance of favoritism. President Bush’s commutation of Scooter Libby’s sentence, and his administration’s constant assertion of executive privilege, have conveyed the impression that “FOPs” (friends of the president) are not treated equally. In addition, the next president will have to address the fact that the United States has one of the highest incarceration rates in the world. More than 2.2 million Americans are currently in prison—many of them for drug offenses. One out of every three young, African males is a defendant in the criminal justice system. Yet despite lengthy sentences and “three strikes” laws, little progress is being made in the “War on Drugs.” Innovative solutions are needed.

Finally, the next administration will need to recognize the tremendous contributions that judges, prosecutors and criminal defense lawyers make everyday to the criminal justice system. Federal judges have not received a pay-raise in 11 years, and they make less money than many law school graduates only a few years removed from law school. Meanwhile, federal prosecutors are discouraged by the political agenda that has been set for their cases and the DOJ’s refusal to fairly allocate resources. The next administration must understand that true reform of the criminal justice system requires an open dialogue among all three branches of the government, as well as the public.

The next president will have to get back to basics. Turning things around will not be easy, but polls indicate that both Republicans and Democrats want a new direction. The American people want an attorney general and a DOJ that rise above politics. We want someone who can meet the standards articulated by Chief Justice Robert Jackson in Berger v. United States, 295 U.S. 78, 88 (1935): “The [federal prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”