How Will Obama Reform the Justice Department?

The Washington Post examines how President-Elect Barack Obama may overhaul the Justice Department in an attempt to restore confidence. First, the problem, created by the Bush Administration:

The infusion of politics into the Justice Department and an abdication of responsibility by its leaders have dealt a severe blow," Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Arlen Specter (Pa.), the panel's ranking Republican, wrote in an opinion piece last month. "Great damage has been done to the credibility and effectiveness of the Justice Department."

Next, the possible solutions and reading the tea leaves on what Obama may do: [More...]

What will Obama's position be on the refusal of Bush aides to comply with congressional subpoenas?

Obama will have to do a careful balancing act. At a conference in Washington this week, former department criminal division chief Robert S. Litt asked that the new administration avoid fighting old battles that could be perceived as vindictive, such as seeking to prosecute government officials involved in decisions about interrogation and the gathering of domestic intelligence. Human rights groups have called for such investigations, as has House Judiciary Committee Chairman John Conyers Jr. (D-Mich.).

"It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries," Litt said. "It would really spend a lot of the bipartisan capital Obama managed to build up."

Litt, an informal Obama adviser and and former top Justice Department official under Bill Clinton, said at a Brookings Institution panel yesterday,

...Obama more likely will hammer out a compromise for Democrats to get at least some of the information they want. Litt said it would likely be done without forcing the subpoena issue that could set a long-lasting precedence for future White House dealings with Congress.

The Post identifies these individuals as transition team members on DOJ policy:

David Ogden, a chief of the department's civil division in the Clinton years, will lead the transition effort. Thomas J. Perrelli, who was a counselor to Attorney General Janet Reno and a classmate of Obama's at Harvard Law School, will serve as a deputy.

Within the Justice Department, career employee Lee Lofthus and political appointee Brian A. Benczkowski have been preparing binders for the transition team that contain sensitive information about ongoing investigations, positions the department has taken in forthcoming legal disputes and more run-of-the-mill data.

In addition to the subpoena issue, and far more important in my view, is this:

Moreover, by summer, key provisions of intelligence law are set to expire, including a controversial measure that gives the government more power to seize information from libraries under the USA Patriot Act. Civil libertarians say they will watch how Obama handles such issues and what he does even earlier, to review new guidelines for FBI agents conducting national security investigations that will take hold Dec. 1.

The Patriot Act and the FBI guidelines deserve much more attention than they have been getting.

Another critical issue: The National Law Journal reports today that the Bush DOJ is attempting to implement the Gonzales-initiated regulations fast-tracking the death penalty (by using an obscure provision in the Patriot Act to shorten the time periods for habeas appeals) before Obama takes office. The regulations generated a storm of criticism when submitted for public review in 2007. (The federal judiciary's concerns are here.) More here.

If you believe strongly that the new Obama Justice Department should focus more on prosecuting Bush Administration officials rather than negotiating a resolution to the subpoenas and moving on to issues like reversing bad policy decisions and orders of the Bush Administration, you should read Glenn Greenwald today. I'm not particularly interested in the subpoena issue or the firing of U.S. Attorneys. I am interested in keeping attention on policies affecting the rights of criminal defendants and ordinary Americans that need changing.

Finally, back to Sen. Leahy's point at the beginning: The Justice Department should be independent. The closer the Attorney General is to the President, the less likely that will be. For those reasons (among others) I hope Obama does not pick either Eric Holder, Janet Napolitano or any other senior campaign official or adviser for Attorney General. As Holder himself said in 2006:

"The attorney general is the one Cabinet member who's different from all the rest," said Eric Holder, who was a deputy attorney general during the Clinton administration. "The attorney general serves first the people, but also serves the president. There has to be a closeness at the same time there needs to be distance."

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    Its strange (5.00 / 1) (#1)
    by Socraticsilence on Thu Nov 13, 2008 at 11:36:41 AM EST
    But I guess the need for efficacy surpasses my personal desire to see various Bush administration officials frogmarched to the Hague. Maybe we can do the Truth and Reconciliation thing South Africa did (though our problems are obviously less serious).

    Then the Bush viloators walk away free (5.00 / 1) (#5)
    by Saul on Thu Nov 13, 2008 at 12:09:56 PM EST
    if you do not try to investigate them or prosecute them. If you more interested in Obama's bipartisan agenda and you let the Bush violators walk then what did you accomplish.  Crazy trade off IMO

    Book 'em Dano... (none / 0) (#2)
    by desertswine on Thu Nov 13, 2008 at 11:41:25 AM EST
    "I guess the need for efficacy surpasses my personal desire to see various Bush administration officials frogmarched to the Hague."

    Not mine, although I don't expect it to happen.

    Two wars and the 2nd Great Depression (none / 0) (#3)
    by sarcastic unnamed one on Thu Nov 13, 2008 at 11:56:54 AM EST
    somehow I think a DOJ "overhaul," while a good idea, may not end up high enough on Obama's to-do list...

    The Next Attorney General Will be.... (none / 0) (#4)
    by gtesta on Thu Nov 13, 2008 at 12:01:49 PM EST
    ...Arlen Specter.  I believe that this will strike the right tone of bi-partisanship and competence.  It will also allow PA govenor Ed Rendell to appoint himself senator, flipping one more red senate seat to blue.

    Rendell can't and won't appoint himself (none / 0) (#7)
    by andgarden on Thu Nov 13, 2008 at 12:16:37 PM EST
    to the Senate. Major reason: our Lt. Governor just died this week, and the State Senate is controlled by Republicans.

    If Arlen Specter is appointed to something (and I doubt he'd accept--he knows the stakes), Rendell appoints Allyson Schwartz to the Senate.


    Catherine Baker Knoll (none / 0) (#15)
    by gtesta on Thu Nov 13, 2008 at 12:50:10 PM EST
    was a nice lady.  Sorry to hear that.

    Indeed. (none / 0) (#16)
    by andgarden on Thu Nov 13, 2008 at 12:55:38 PM EST
    Is it just me.. (none / 0) (#6)
    by pcpablo on Thu Nov 13, 2008 at 12:15:51 PM EST
    when I see the name Arlen Spector, my eyes glaze over?
    Is there any other human with of a soul than that man?

    he has done some good things (5.00 / 1) (#9)
    by Jeralyn on Thu Nov 13, 2008 at 12:28:01 PM EST
    He filed an Amicus brief supporting the Gitmo detainees:

    Amicus curiae, Senator Arlen Specter, is the Ranking Member of the Senate Committee on the Judiciary. During the 109th Congress, when the Military Commissions Act of 2006 and the Detainee Treatment Act of 2005 moved through the Senate, amicus was Chairman of that Committee and held
    several hearings to consider whether it is constitutionally permissible for Congress to deny the right of habeas corpus to detainees held at the United States Naval Station at Guantanamo
    Bay without providing an adequate and effective
    alternative to challenge the legality of their detention.

    Amicus, being intimately familiar with the statutory provisions implicated in these cases, urges this Court to recognize the constitutional infirmity inherent in Congress' effort to foreclose the Great Writ.

    He has also been a big supporter of Gideon v. Wainwright, the landmark decision providing free counsel to indigent defendants. I heard him speak here and he was genuine.


    he should never live down ... (none / 0) (#22)
    by wystler on Thu Nov 13, 2008 at 02:35:56 PM EST
    ... the magic bullet

    seriously ... an indie AG? Fitz fits


    Seems to me, (none / 0) (#23)
    by KeysDan on Thu Nov 13, 2008 at 05:44:09 PM EST
    that a sitting senator of either party is not what is called for at this time--the DOJ needs are similar in many ways to what President Ford inherited in the wake of the Nixon Attorneys General: John Mitchell and Richard Kleindiest.  To clean house, Edward Levi, a distinquished legal mind and president of the University of Chicago was named Attorney General and did all the right things (we are still benefiting from his work, including, with the collaboration of former Senator Charles Percy, R.IL, gave us John Paul Stevens). Fresh and independent leadership of that caliber is needed.  Mr. Specter should stay put, thanks.

    So Obama wants to clean house, huh? (none / 0) (#8)
    by SeeEmDee on Thu Nov 13, 2008 at 12:21:43 PM EST
    The politicization of the Justice Department was begun long, long ago, with the formulation of the DEA, which was intended to be Tricky Dick's very own legal nightstick to club those whom he believed were the DFH's (a.k.a 'leftists') of his day.

    The advent of the Office of National Drug Control Policy cemented this practice into place, particularly when you consider the ONDCP's charter specifically violates the Hatch Act and enables a Fed agency to be used for partisan political purposes...as well as blatantly propagandizing the public in favor of policies that benefit those who are career DrugWarriors.

    Let's see some real 'change'. Prez-Elect Obama wants to de-politicize the Justice Department? I can think of two nice, big, fat targets right off the bat that need to be axed.

    How is this different that Hillary's Firings? (none / 0) (#10)
    by Discovery on Thu Nov 13, 2008 at 12:28:39 PM EST
    I would like a lawyer to weigh in on the precedent.  I don't understand how the firing of the eight US Attorney's is any different than when Janet Reno fired all 93 U.S. Attorneys in 1993?

    This action in 1993 was absolutely unprecedented in that every previous administration held the U.S. Attorneys through each administration change.  Several of those lawyers were close to prosecuting in the White Water Case against the Clinton's - and the firing resulting in none of the prosecutions being closed.

    So if the one administration can fire 93 US. Attorneys without cause - then why is the firing of 8 US Attorney's without cause a crime?  Other than it night tasting right - what is the crime - and what is the change in precedent?

    Oy (5.00 / 1) (#11)
    by andgarden on Thu Nov 13, 2008 at 12:32:50 PM EST
    The CDS is strong with you.

    Apparently you don't know anything about precedent: Reagan replaced most of the U.S. Attorneys too.

    As for Whitewater, pffft.


    Hillary fired US Attorneys? (none / 0) (#12)
    by Lil on Thu Nov 13, 2008 at 12:34:59 PM EST
    Huh? (none / 0) (#13)
    by Steve M on Thu Nov 13, 2008 at 12:37:29 PM EST
    Every previous administration kept all the US Attorneys from the prior administration?  Are you nuts?

    As much as 'moving on' is needed, (none / 0) (#14)
    by Carolyn in Baltimore on Thu Nov 13, 2008 at 12:50:05 PM EST
    the fact is that if we don't indict or otherwise punish, they'll be back. Nixon cronies were mostly punished and while some resurfaced, most never got the reigns of power again.
    After Iran-Contra few were punished and look who staffed the Bush WH and Agencies. PNAC neocons, Cheney's minions - ugh.
    I'd prefer to clean house and at least hack a bit at the hydra-head of the neocons.

    If the repubs gain again, and they will, I would prefer they be more moderate and hopefully more honest and less cynical. I sure don't want Addington teaching them how to do it.

    Signing Off (none / 0) (#17)
    by Discovery on Thu Nov 13, 2008 at 12:56:05 PM EST
    And I remembered again why I never comment on this site - any question out of party line is met with insults - within ten minutes I am called "nuts and deranged" without ever answering the basic question of this thread - what is the crime?  

    I appreciate the update in history - correct - Reagan fired 89 US Attorney's.  You just doubled the number of fired attorneys and administrations it spans.  That's what I thought the open dialog is for - to exchange knowledge.  

    Discovery (none / 0) (#18)
    by sarcastic unnamed one on Thu Nov 13, 2008 at 01:56:46 PM EST
    That topic has been thoroughly explored here on TL several, perhaps many, times before.

    This is as nonpartisan a nutshell as I think you'll find:

    Traditionally, when the new potus rides into town he fires the US attorneys from the previous administration and replaces many, if not all of them, with his own.

    Usually these appointees do their job until the next potus rides into town and repeats the whole cycle of firing/appointing.

    Very rarely (like never) have appointed US attorneys been fired by their own potus before that potus's term(s) in office is up.

    Bush, however, fired 8 of his US Attorneys in '06, two years before his term was up.

    Why did he do this?

    Well, because - the accusation is - they wouldn't be partisan enough for him.

    Is that a reasonable/moral/whatever, reason to fire the Attorneys?

    There are differing opinions leading to differing answers...


    Precedented major error is met with (none / 0) (#20)
    by ThatOneVoter on Thu Nov 13, 2008 at 02:09:14 PM EST
    predictable scorn.

    New administration and fighting old battles (none / 0) (#19)
    by koshembos on Thu Nov 13, 2008 at 02:01:07 PM EST
    Fighting old battles has a fur reaching implication outreaching political ones. The country must make peace with its ugly recent past. Continued hidings of transgressions has the effect of sweeping things under the rug. Historically, it's harmful.

    In order to fix problems you have to know what the problems are. Now, we know only little of the potential criminal acts performed by DOJ during Bush. Let the sun shine over the DOJ ruins and let everyone take pictures; we need them.

    Glenn Greenwald (none / 0) (#21)
    by koshembos on Thu Nov 13, 2008 at 02:19:53 PM EST
    In my view Greenwald arguments are misplaced. His personal attack on Litt redundant and only serves to cloud the scene even further. There actually is nothing terribly wrong with an implied amnesty of "small" crimes from the previous administration. It can serve a useful purpose of turning a fresh page and starting from a virgin DOJ.

    The problem with Bush DOJ is that the crimes don't appear small and may be deeply buried. An investigation serves as archeological dig into a culture we are not familiar with. We dig because we want to know. If the digs turn out major crimes, quite likely, we can prosecute them. First and foremost we must know what happened; now we don't.