Former Justice leaders: 2019 going to be rough — Americans need to recall our timeless principles

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Over the course of the next year, the Special Counsel’s office likely will reach important milestones in its investigation of Russian interference in the 2016 election and related matters including, for example, financial dealings of top governmental officials. Whichever way the facts cut over the coming months, it is likely that 2019 will test Americans’ confidence in our democratic institutions and collective civic fabric.

Unhappily, we think that there is too good a chance that it will be a year rife with partisanship, trending towards further divisiveness, and with a good measure of incivility added to the public discourse. As Americans, we will weather the storm together only if we remain committed to fundamentals.{mosads}

We begin with the First Amendment. The press is always hard on politicians, including any occupant of the White House. Early reports are sometimes wrong; sometimes analysis tends to overshadow verified facts. But it is indisputable that our American-style free press is critical to a functioning democracy: Holding those in power to account for decisions and outcomes and shining a light on activities undertaken by the government that citizens deserve to know.

The press is not the enemy of the people. The press is of the people, and provides a critical service to our understanding of how those in positions of authority use — or abuse — power. Our leaders, as well as citizenry, need to remember that.

Second, we have three branches of government, each with independent constitutional responsibilities. The framers debated and rejected a system of government that provided too much power in a monarch-like executive. Instead, the Congress was devised as a critical check on executive authority, with, for example, legislative, appropriations and impeachment responsibilities. Congress can legislate against corruption, can control the allocation of funds for reckless projects not grounded in factual basis or intelligence assessment, and can remove government officials who violate their oath to uphold the law according to a defined standard. These are serious, fundamental responsibilities.

Members of Congress, however politically aligned, are not agents of the executive; each one has independent responsibilities assigned by the Constitution and affirmed by their own oath of office. We thus urge our legislators, not only to investigate, but also to legislate in a clear, definitive and responsible way.

Third, while federal law enforcement activities fall under the leadership and guidance of the Attorney General, the criminal justice system functions as an interconnected network of federal, state and local law enforcement, and federal and state judges and courts. Each official and officer in this system takes no oath to any elected official, but instead to upholding the law, and the constitution.{mossecondads}

The decision to charge someone with a crime and bring the full weight of prosecutorial power must always be nonpartisan, and never borne of retribution, ambition or malice. Although selection of prosecutors and judges often involves political affiliation and political processes, those selections must be made in a way that brings confidence that justice will be administered without regard to politics. Americans should demand that the Justice Department be led by an Attorney General of sufficient qualifications who has been subject to the rigor and legitimacy of a Senate confirmation.

Above all, our national leaders and political partisans of all stripes must remember that we depend upon our Department of Justice to act in a fair and independent manner and with a constant eye on the rule of law. That department is not the law firm of the chief executive or any political appointee but, instead, is the representative of all the people and the abiding institutions of America.

Finally, no person is above the law. Lawyers can and will argue whether the mechanics of the criminal justice system can reach the highest office, and the details of who in government is subject to what legal process. Regardless of how the courts might resolve these types of questions, the constitution provides a system for removing corrupt officials from federal office. In any case, whether an inquiry as to removal from office derives from the current set of far-reaching investigations or otherwise, the exercise of this authority does not create a constitutional crisis; instead, it is an exercise of constitutional design.

We face the new year not without some apprehension, because we know that our institutions will be tested. But we have confidence in them, especially if our national leaders, as well as our citizenry, firmly are guided by our constitution and the rule of law.

Stuart M. Gerson is a former Acting Attorney General of the United States. Peter D. Keisler is a former Acting Attorney General of the United States. Carrie Cordero is the Robert M. Gates Senior Fellow at the Center for a New American Security and former Counsel to the Assistant Attorney General for National Security.

Tags Constitution Donald Trump Political philosophy Robert Mueller Rule of law Separation of powers Special Counsel investigation
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