'Access to Justice' was not blind
© Getty Images

A recent op-ed in The Hill and New York Times report both bemoaned the loss of the Justice Department’s so-called “Access to Justice” (A2J) office. Despite the office’s stated mission to “deliver outcomes that are fair and accessible to all,” the actions performed by A2J employees during the previous administration lead us to believe that its closure is a necessary step in the right direction.

Due to an investigation by the House and Senate Judiciary committees, it was discovered that the A2J office was responsible for a terrible abuse of power. In just two years, the Justice Department—thanks to suggestions from A2J—directed nearly a billion dollars in settlement funds away from victims and gave them to their preferred third-party organizations instead. These settlements provisions were designed to funnel money to political allies. 

ADVERTISEMENT

The Spending Power is one of Congress’s most effective tools in reining in the Executive Branch and ensures that elected officials are accountable for how taxpayer money is spent. Sadly, unelected A2J officials, working with then-Assistant Attorney General Tony West, circumvented this Constitutional requirement by forcing settling defendants to donate money to third-party groups chosen by DOJ. In some cases, DOJ used settlement to reinstate funding to groups that Congress had specifically cut.

From the start, the intention of DOJ officials was clear. Leading up to the settlements, Mr. West’s deputy emailed the Office of Legal Counsel asking, “[c]an you explain to Tony the best way to allocate some money toward an organization of our choosing.”  A2J subsequently prepared a memo detailing how mandatory donations could be used to “achieve [West’s] goals.”

Under the leadership of Obama appointees, and with the help of A2J, the Justice Department became a funding arm for like-minded ideology, entirely without Congressional approval.

As if circumventing a Constitutional requirement wasn’t bad enough, there is disturbing proof that West and A2J went out of their way to also exclude conservative groups.  

On July 8, 2014, six days before DOJ finalized its settlement with a major bank, West’s top deputy circulated a draft of the agreement’s mandatory donation terms.  Karen Lash, a top A2J official, responded requesting a word change to achieve the aim of “not allowing [the bank] to pick a statewide intermediary like the Pacific Legal Foundation [PLF]” which she explained “does conservative property-rights free legal services.” The change was made.

It’s not every day that Congressional investigations find a smoking gun, but here we have it in internal DOJ documents. 

Access to Justice, rather than providing restitution to direct victims of the bank’s wrongdoing on a neutral basis, promoted hyper-partisanship and damaged the reputation of our nation’s law enforcement. 

This practice is wrong no matter which party is in power. A former deputy Assistant Attorney General for the Office of Legal Counsel in the Clinton administration warned in 2009 that DOJ “has the ability to use settlements to circumvent the appropriations authority of Congress.”  In 2008, a top Republican DOJ official restricted mandatory donation provisions, because they could “create actual or perceived conflicts of interest and/or other ethical issues.”

We applaud Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsEx-Sen. Doug Jones joins law and lobbying firm Arent Fox Former Barr spokesperson at DOJ hired to be Fox News Washington editor Biden should call for Article I immigration courts MORE for also issuing a directive earlier this year banning mandatory donation provisions in DOJ settlements. However, history shows that we cannot assume that future administrations will keep this policy in place. Indeed, in 2009, the incoming Obama administration reversed course from previous DOJ guidance that had started imposing limits on settlement payments to non-victims.

That is why the House of Representatives passed bipartisan legislation, the Stop Settlements Slush Funds Act of 2017, that would permanently end the practice of funneling settlement money to outside groups. Companion legislation in the Senate is sponsored by Sen. Lankford. 

It was obvious from the outset that mandatory donation provisions create opportunities for abuse. We now have the proof that such abuses actually occurred. The bad faith exhibited previously by the DOJ should be concerning to all people who value fairness, regardless of political party. A bill that halts this abuse permanently and is good governance and the Senate to schedule a vote without delay.

As for A2J, any government office that abuses its power to deny victims their due, sends money to allies, and targets political foes is a stain on our nation’s justice system. The closure of such an office is not, as the Times suggests, a tragedy for civil rights, but a triumph for the rule of law. Let’s take the next step to regain the public’s trust by ending this practice once and for all.

Goodlatte is chairman of the House Judiciary Committee and Lankford is a member of the Senate Homeland Security and Governmental Affairs Committee.