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Redeeming justice: the next attorney general
In October 2020, Philip Halpern, a respected federal prosecutor of 36 years, resigned from the U.S. Justice Department (DOJ) because of what he called Attorney General William Barr's "slavish obedience" to the whims of President Trump. In November, Richard Pilger, director of the department's election crimes unit, stepped down when Barr changed department policy and authorized federal prosecutors to investigate voter fraud while post-election controversies still raged. In response, 16 prosecutors given the assignment reported no fraud and complained that Barr's memo improperly thrust them into partisan politics.
Such objections were nothing new. In February, all four prosecutors handling Roger Stone's case resigned when the department reduced its recommended sentence. In May, the top prosecutor on the Michael Flynn case quit when Barr ordered its dismissal. More than 2,000 former DOJ prosecutors and FBI officials followed with a demand for Barr's removal.
The common thread in these and similar cases is political interference with law enforcement. Collectively, they signify the debasement of the Justice Department under this attorney general.
When I worked in the deputy attorney general's office during the Obama administration, we understood that politics could play a part in some decisions. But where it had any influence, it was third in line behind law and policy. We understood, too, that the White House had a say in the department's decisionmaking, but only on issues of policy as communicated to senior political appointees in the department. Most important, we understood that when it came to law enforcement, politics was off limits.
The Clinton administration also respected the independence of law enforcement. In the White House Counsel's Office back then, I was the designated enforcer of a strict ban on meddling in such decisions. Once, a Justice Department official invited me to a meeting that I did not realize affected a law enforcement issue. The division head promptly threw me out.
One of the Justice Department's foundational statements on law enforcement is a 1940 speech by Attorney General Robert Jackson to federal prosecutors. Jackson reminded the prosecutors that they have "more control over life, liberty, and reputation than any other person in America." He worried about their "most dangerous power," the ability to "pick the people he thinks he should get, rather than pick cases that need to be prosecuted." He therefore urged prosecutors to "serve the law and not factional purposes." While Jackson's speech focused on persecution, his logic also condemns the converse - cronyism, corruption and submission to political masters.
It is thus ironic that in September, speaking at Hillsdale College, Barr cited the same passages to argue not that law enforcement must be independent and apolitical, which was Jackson's point, but rather that it should be responsive to politics. According to Barr, the principal check on prosecutorial abuse is political accountability. Career prosecutors, he said, lack political legitimacy in making law enforcement decisions. Though he also mentioned "detachment" and reasonableness, Barr captured his point in the acid remark, "Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it's no way to run a federal agency." It is no surprise that morale at the department is in the tank.
To be sure, political appointees should be accountable for the department's decisions. But accountability occurs after the fact, when damage has already occurred. It is a last line of defense. Barr's speech reads less like a prospective call for accountability than a rationalization for his supine submission to all but the president's most outlandish efforts to politicize the department.
The harms wrought by this misfeasance will last a long time. Shattered traditions are not easily restored. Although the Biden administration will likely respect the department's independence, rebuilding will require concerted effort and substantial resources.
To that end, President-elect Biden should appoint an attorney general who is not a political figure and whose probity is beyond challenge, in the mold of Edward Levi, who was president of the University of Chicago when President Ford appointed him to redeem the department after Watergate, or Griffin Bell, a former court of appeals judge, or William Webster, also a court of appeals judge when Carter appointed him FBI director. In addition, the next attorney general should be a veteran of the department who has internalized the principles that Robert Jackson proclaimed and whose personal mission is to revive and reinforce them in the hearts and minds of every employee.
With such leadership, perhaps the Department of Justice can rebuild its reputation and live up to its name.
Robert N. Weiner, an attorney practicing in Washington, D.C., was associate deputy attorney general in the Obama administration and senior counsel in the White House Counsel's Office in the Clinton administration.