The Floundering Department of Justice
by Scott Horton
Just a few smaller pieces that came up in the course of the week that I didn’t get into dealing with. (A busy week, hence fewer posts).

 

 

 

But he started his remarks with a discussion of federal prosecutors.

 

 

The words are poignant and capture my own feelings right now. Here’s a clip, courtesy of the Atlanta Constitution-Journal:

During the Kennedy and Johnson administrations, we knew that individuals in the Department of Justice were people who we could call any time of day or night….And we felt during those years that the civil rights division of the Department of Justice was more than a sympathetic referee, it was on the side of justice, on the side of fairness.

During the movement, people looked to Washington for justice, for fairness, but today I’m not so sure that the great majority of individuals in the civil rights community can look to the division for that fairness…. In the last few years we have lost more career civil rights lawyers than ever before. The new lawyers are being hired, for the first time in the division’s history, by political appointees, rather than career attorneys. It is not surprising that the division is hiring fewer lawyers with civil rights or voting rights backgrounds.

There is also a clear shift in the types of cases being brought by the division. The division is neglecting traditional civil rights cases, and it appears to have given up on enforcing the Voting Rights Act all together. I am particularly disturbed by the way the civil rights division handled the Georgia voter ID law in 2005. . .

However, the Voting Rights Section has always been above partisanship and it has resisted attempts by other administrations to influence the outcome of cases. . . This was not the case with the Georgia law. The Georgia voter ID law would required voters to show a photo ID at the polls and would have disproportionately prevented minorities from voting in Georgia.

The career attorneys found that the law violated the Voting Rights Act and recommended that it should be denied pre-clearance, but the career attorneys were overruled by the political appointees. This type of political influence — preventing the enforcement of our civil rights laws — is shameful and unacceptable. Thankfully a federal court saw the law for what it was — a poll tax — and struck it down.

It is clear that the civil rights division of the Department of Justice has lost its way. The Civil Rights Division, once guardian of civil rights, has been so weakened that I do not recognize it. Congressional oversight could have prevented some of this. Freedom and equality are rights that are not simply achieved; they must be preserved each and every day. But, we have not been focused on protecting our rights, and therefore, we are watching them slip away….

We must reverse the political hiring process and put the decisions back in the hands of the career professionals, who know what it takes to enforce our civil rights laws.

 

Assistant Attorney General Peter Keisler has become the latest senior political appointee to announce his Friday under-the-radar exit from the Department. Keisler was most recently in the news when it became known that a significant number of his staff had rebelled, refusing to work on habeas corpus petitions coming out of Guantánamo.

As I noted at the time, it is now an accepted fact that the Justice Department has made numerous and egregious false representations to the courts surrounding precisely these cases. I have in the meantime confirmed with one of the staff that serious doubt about the factual accuracy claims put forward by Justice in these proceedings was one of the factors precipitating the mutiny, but concern about the rank injustice of the positions staked out under the leadership of Gonzales and Keisler is another reason. It does not appear that Keisler enjoyed the uniform respect or confidence of his staff. The Baltimore Sun reports:

he was an early member of the Federalist Society, a conservative legal organization. He played a key role in large civil cases such as the government’s massive suit against the tobacco industry and in 2005 signed off on a controversial decision to reduce the amount sought from the industry in that case from $130 billion to $10 billion.

 

 

Bradley Schlozman is a perfect example of a “loyal Bushie” within the Justice Department. His conduct and behavior made clear that he put engaged partisanship uppermost in his mind at all times. Indeed, it was Schlozman who insisted on the most extreme loyalty tests: he is the senior Justice official reported to have expressed reservations over a career justice employee because she was suspected of having voted for John McCain during the Republican primaries in 2000. Schlozman’s response to written questions continue to be a careful study in evasion. But Schlozman appears to have improved his memory of some of the relevant facts. And he gives things a bizarre twist. Since as acting U.S. Attorney in Kansas City he could not make direct hires, he had to go through Monica Goodling, he says. He knew that Monica had a strong preference for politically engaged Republicans, so he went the same route in order to improve his chances of a hire.

Schlozman’s answers are probably an admission of a violation of the Hatch Act, just as Monica Goodling previously acknowledged violating it. Thus it is increasingly clear that the violations were systematic, widespread, understood by persons at the top of the bureaucracy (including Gonzales, McNulty, and Elston, McNulty’s chief of staff), and involved a measure of coordination with Karl Rove in the White House (that, afterall, was Monica’s job). This is not a matter of a couple of incidents of violation. It is a widely based conspiracy to subvert the law. A criminal conspiracy. Once more we are witnessing the institutional subversion of the Department of Justice for criminal purposes.

Further details and analysis, and a copy of the questions and answers can be found at TMP Muckraker.

 

 

Jack Goldsmith, the Harvard professor who was a former lawyer in the Bush Justice and Defense departments, has a new book out entitled The Terror Presidency which I will be reviewing shortly. The book is a fascinating read on many counts, but no passage of it struck me more than his description of his own job interview for the Justice Department. He recalls that he was grilled by Gonzales’s office at some length about his political affiliations and views, and that a Gonzales aide named David Leitch was particularly rattled by the fact that he had given $800 to a law school dean who was a Democrat(!) “Why have you never given money to Republicans?” Leitch demanded, “Are you a Republican?”

In fact Goldsmith’s political sympathies are hardly disguised. He is and has long been viewed within the academic community as a very conservative Republican with Neoconservative leanings on a number of questions. His book on international law (co-authored with Eric Posner) is pretty much the only serious academic work defending the Bush Administration’s idiosyncratic views about international law. Goldsmith and Curtis Bradley have long been viewed as the two serious rising stars among the Federalist Society crew in this area (John Yoo, the third, is generally reckoned a distinctly inferior legal talent, though he tries to make up for this with the most vigorous and shameless PR marketing ever seen in legal academia). And yet even Goldsmith gets this treatment.

The other striking thing that emerges from this and related incidents: merely being a Republican is not enough. The interviewers want evidence that the candidates they pick have worked in the trenches, that they are engaged partisans. They also want evidence of financial loyalty.

 

 

 

 

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