By Aziz Huq
March 13, 2007
As Shakespeare might ask, what happens when the quality of justice becomes strained? That is the question raised by new evidence of improper politicization of the Department of Justice. This evidence is but the latest in a string of revelations of justice (small and big “j”) pushed from its proper place that ought to prompt new laws to guard the propriety and independence of those who enforce the nations laws.
On one day in December 2006 Main Justice, as the Department of Justices headquarters in Washington, D.C., is known, fired seven of the country’s United States Attorneys. Another who is considered part of the purge was fired months earlier. They are prosecutors responsible for enforcement of criminal law in the federal courts around the country.
The president has always had the power to fire U.S. attorneys, and, indeed, incoming presidents of both stripes generally remove all sitting prosecutors and replace them with new people. But until the Patriot Act was reauthorized last March, new prosecutors had to be vetted and approved by the Senate. Thanks, however, to a provision slipped into that bill by one of Senator Arlen Spector’s aides rather tellingly without the senator’s knowledge the president now has power to appoint replacement prosecutors without involving a coordinate branch.
Previously, local senators and federal judges had a say in who the U.S. attorney would be, so this not only shifts authority north-west from Capitol Hill: Scorning federalism, the Patriot Act provision pulls power back to the center.
It should thus come as no surprise that some of the recently appointed are close political allies of the White House. The new U.S. attorney for Arkansas, for example, Timothy Griffin, was an aide to presidential adviser Karl Rove. Calling the Senate confirmation process a circus, Griffin has said he would not stand for Senate confirmation for the same office he was willing to accept by midnight presidential selection.
Evidence is indeed mounting that the removals were motivated by a narrow, partisan effort to direct prosecutions against the administrations political enemies and away from its friends. Hearings in the House confirmed last week that several of the prosecutors feel that their removal was motivated by their decisions in politically sensitive cases, including the corruption case of Duke Cunningham. And McClatchy Newspapers confirmed yesterday that the Justice Department’s claim that sub-par job performance lay behind the firings is false: At least five of the attorneys had recent positive job evaluations. Indeed, the imperative for the sackings apparently came from within the White House itself .
These removals matter because prosecutors play pivotal roles both inside and outside the justice system. You dont have to be a “Law and Order” aficionado to understand the sway that prosecutors have, especially in bargaining for plea deals that can obviate the need for any trial. Studies have found that about nine of every ten federal cases do not reach trial. Today, invocation of the constitutional right to a jury trial is more the exception than the rule.
Yet the plea bargaining process is one in which prosecutors exercise huge, almost unregulated power . In 1978, the Supreme Court held that prosecutors can secure plea bargains using the threat of piled-on charges at trial. That ruling, combined with other cases that greatly restrict any judicial inquiry into the exercise of prosecutors’ discretionary judgment, means that in most cases, in most jurisdictions it is the prosecutor who acts as investigating magistrate, judge and jury all rolled into one.
Such prosecutorial discretion matters. Despite the use of rigid sentencing guidelines intended to providea certain degree of neutrality and predictability in sentencing, federal prosecutions still have racially disparate impacts. The inequitable treatment of crack and cocaine is merely the tip of a larger issue of differential treatment along the color-line.
At stake in the cases of the fired U.S. attorneys were high-profile political prosecutions, including corruption cases, that could have made a dispositive difference in the 2006 election season. Manipulation in such cases raises the specter of prosecutorial discretion being exercised in a way that entrenches a particular political faction. While it is certainly the case that elected officials in the executive branch can influence the direction of prosecution policy to some degree, it is fundamentally inconsistent with the rule of law for prosecutors’ decisions in discrete cases to be suborned in the name of partisan advantage. This is simply not equal justice under law.
This kind of political trafficking in the name of partisan advantage is nothing new. It has been seen recently in the Justice Departments Civil Rights division. In 2003, that office signed off on Tom DeLay’s bizarre, and nakedly partisan, redistricting of Texas. Then, in 2005, the political chiefs in that same office overruled seasoned staff attorneys on a clearly unconstitutional identity requirement in Georgia. That rule, which would have burdened mainly low-income and minority communities, would likely have no surprises helped the Republicans and hurt Democrats.
Filling U.S. positions with Administration allies has further pernicious consequences, even beyond these very obvious effects. As Berkeley criminologist Jonathan Simon points out in an important new book, Governing Through Crime, prosecutors have become archetypal figures in American politics. Along with state political offices, the office of the federal prosecutor has become the most important launching pad for national political office in the last few decades. The list of former prosecutors who aspire or have aspired to national elected and appointed office includes, among many others, Rudolph Giuliani, William Daley, John Kerry, Bob Dole, Earl Warren and Edwin Meese.
Attorneys are not only lined up well to go into politics; they are also en route to the federal bench. It is no secret that the Republican party has made a concerted (and largely successful) effort to stack the federal bench in the past few years. Recent judicial nominees have included people such as William Hayes, who worked hand-in-glove with John Yoo and David Addington to gut military interrogation standards. Stacking the U.S. attorneys office would simply be the next step.
The Administration’s assault on the integrity of American law has not been limited to the Justice Department. Military lawyers tasked with defending detainees in military custody have also found themselves under siege. Earlier this month, Morris Davis, chief military prosecutor for the Guantnamo tribunals, intimated none-too-subtly that military defense lawyers who complained too strenuously about the unfairness of the military commissions system established by legislation last year might be subject to criminal prosecution for their statements. This comes after another military defense lawyer was effectively pushed out of the Navy for his vigorous (and first-rate) legal advocacy on behalf of another detainee client.
And, in an ironic twist, just as the extent of administration meddling in the justice system at home is becoming apparent, White House allies are mounting an assault on other countries efforts to protect the rule of law against American law-breaking overseas.
Take the case of extraordinary rendition, the practice of seizing an individual outside the United States and shipping them off to a third country for interrogation and torture. The United States has consistently declined to aid in Canadian and German inquiries into the facts of two cases in which the United States rendered those countries citizens to torture. Worse, a federal court of appeals recently denied the German citizens request for a legal accounting for his kidnapping and four-month detention.
Not content to stonewall foreign inquires and to block domestic civil cases, administration allies have suggested blocking other nations justice processes. In a recent article, administration allies Lee Casey and David Rivkin condemn criminal proceedings in Germany and Italy against CIA agents who were involved in extraordinary renditions. They call on Congress to criminalize these foreign prosecutions. The notion is plainly absurd, but does hint at the ideological hostility to any kind of fair accounting that dominates the Administration’s thinking today.
Congress needs to return the Justice Department to the position of impartial and fair-minded umpiring that many attorneys general, under both party’s colors, have pursued. The firing of discrete individuals for wrong-doing or for misleading the Congress would not be enough. Rather, what we need now is root-and-branch reform to achieve the kind of national justice system that Americans deserve and need.
Aziz Huq directs the Liberty and National Security Project at the Brennan Center for Justice. He is co-author of Unchecked and Unbalanced: Presidential Power in Times of Terror, and recipient of a 2006 Carnegie Scholars Fellowship.