December 20, 2007

More Independence At Justice

Michael Mukasey promised Congress during his confirmation hearings that he would operate the Department of Justice in a more independent manner than his predecessor. Yesterday, he took a big step in that direction with an order limiting contacts between Justice and the White House. Communications on pending criminal and civil cases will only get conducted through a limited number of channels (via Memeorandum):

Attorney General Michael B. Mukasey issued new restrictions yesterday on contacts between Justice Department and White House officials regarding ongoing criminal or civil investigations, implementing his first major policy revision since taking office on Nov. 9.

Mukasey had promised to institute new guidelines in the wake of the U.S. attorney firings scandal, in which lawmakers and some prosecutors alleged that White House political aides and other officials were inappropriately informed about details of criminal or civil probes.

The new guidelines would restrict such communication but would still allow discussions between officials at all levels of the department and the White House about legislation, budgets, policy issues and political appointments, presumably including decisions to hire or fire U.S. attorneys.

In a memo yesterday to senior Justice Department officials and U.S. attorneys, Mukasey said that, "on many subjects, the White House and the Department must be able to communicate freely." But communication about pending criminal or civil cases "must be limited," Mukasey wrote. "The Department will advise the White House . . . only where it is important for the performance of the President's duties and where appropriate from a law enforcement perspective."

Mukasey said that contacts about pending criminal cases will be limited to the attorney general and his deputy and to the White House counsel and deputy counsel. Civil-enforcement investigations will be limited to the same officials, plus the associate attorney general, the department's third-in-command. Discussion of national security investigations will not be subject to limitations but will require notification of the attorney general or his two senior aides.

In order to operate effectively, the DoJ has to retain independence from the political operations of the White House. The nation learned this lesson the hard way during Watergate, when John Mitchell made Justice a subsidiary of the Nixon political machine. Neither Justice nor the White House has credibility if the Attorney General does not put some space between the two, even if no untoward conduct has occurred.

For instance, the close relationship between the White House and DoJ created the appearance of interference in this case:

The Justice Department delayed prosecuting a key Republican official for jamming the phones of New Hampshire Democrats until after the 2004 election, protecting top GOP officials from the scandal until the voting was over.

An official with detailed knowledge of the investigation into the 2002 Election-Day scheme said the inquiry sputtered for months after a prosecutor sought approval to indict James Tobin, the northeast regional coordinator for the Republican National Committee. ...

While there were guilty pleas in the New Hampshire investigation prior to the 2004 presidential election, involvement of the national GOP wasn't confirmed. A Manchester, N.H., policeman quickly traced the jamming to Republican political operatives in 2003 and forwarded the evidence to the Justice Department for what ordinarily would be a straightforward case.

However, the official, who requested anonymity because of the sensitivity of the matter, told McClatchy that senior Justice Department officials slowed the inquiry. The official didn't know whether top department officials ordered the delays or what motivated those decisions.

These guidelines make sense, as this aptly shows. Even if nothing unethical happened, the frequency and breadth of communications on criminal and civil cases between the DoJ and the White House leads to the appearance of interference, at the very least. Having bright lines between the two organizations acts to protect both from inferences of impropriety.

Without that kind of independence and narrow, well-defined rules of communication, we are left with few choices when investigations of public officials become necessary. We have to either rely on an independent DoJ, a serious and bipartisan Congress, or start appointing independent counsel as investigators. We've had to try the latter for thirty years, and almost every time it winds up as an expensive disaster, a modern-day secular Inquisition in which the investigators have every incentive and all leeway to keep changing the mission until they can claim a scalp.

If we don't want that, then we need to support Mukasey and the independence of the DoJ. He has taken the correct initial steps to right the ship, and hopefully can restore confidence in the Department of Justice quickly.


TrackBack URL for this entry:

Please note that unverified Disqus users will have comments held in moderation. Please visit Disqus to register and verify your account. Comments from verified users will appear immediately.