The Case for an Independent Department of Justice
(1) A half-century of scandals. The following is a list of just some of the controversies surrounding the politically-appointed attorneys general over the last five decades. Neither political party has had “clean hands” during this period. Any neutral review of this history compels the conclusion that the removal of the office of the Attorney General from the president’s cabinet (and influence) is long overdue.
- Richard Nixon’s Attorney General from 1969-1972, John Mitchell, was sentenced to prison for his role in the Watergate scandal, and was disbarred by the State of New York. The Watergate affair also resulted in the so-called “Saturday Night Massacre,” in which Nixon dismissed special prosecutor Archibald Cox, resulting in the protest resignation of Attorney General Elliot Richardson. Richardson had replaced Richard Kleindienst, who had replaced Mitchell when Mitchell resigned to work on Nixon’s re-election campaign. Kleinidenst had also resigned in response to the Watergate scandal.
- Janet Reno, Bill Clinton’s Attorney General from 1993-1998, authorized the disastrous siege and assault on the Branch Davidian compound in Waco, Texas, which resulted in 76 deaths, including many women and children. Reno’s involvement in Waco is particularly disturbing when one considers that she also oversaw the investigation into the Ruby Ridge incident of 1992. While Ruby Ridge occurred before Reno took office, she approved investigation findings that resulted in what has been called a “whitewashing” of the government’s involvement in the FBI sniper killings at the scene. (The government ultimately settled a civil suit by the victims’ survivors, paying millions, but admitting no wrongdoing.)
- Reno also authorized the armed seizure of six-year-old Elián Gonzalez, returning him to Castro’s Cuba even though his mother had died at sea seeking a free life for her son in the United States. Reno’s DOJ leaked incorrect and defamatory information to the media concerning Richard Jewell in the Centennial Olympic Park bombing. She rejected calls for the appointment of a special prosecutor to investigate allegations regarding illegal campaign financing donations to the Clintons by John Huang.
- Alberto Gonzalez, George W. Bush’s Attorney General from 2005-2007, presided over the dismissal of several United States Attorneys for purely political reasons. When faced with the controversy, he attempted to disavow knowledge of the process, and tried to blame his actions on career attorneys within the Department of Justice. Records released by DOJ afterward suggested that his claims of non-involvement were false. He was forced to resign under pressure.
- Eric Holder, Barrack Obama’s first Attorney General, was appointed to the office despite having been a member of a law firm which had defended Guantanamo terrorists, a matter which should have arguably disqualified him from presiding over related legal issues while AG. His department’s attempt to prosecute Senator Ted Stevens of Alaska had to be dismissed because of discovery obligation violations, and DOJ attorneys working for Holder and supervising the prosecution tried to pin the blame on local federal prosecutors in Alaska.
- Holder’s so-called “Smart On Crime” initiative resulted in the early release and/or reduced sentences for hundreds of convicted felons, many of whom were large-scale drug traffickers. One inmate benefitting from an early release as a result of this initiative, Wendell Callahan, is charged with murdering his former girlfriend and two of her children in Columbus, Ohio.
- Holder’s tenure oversaw the ridiculous Operation Fast and Furious, which resulted in the sale of hundreds of firearms to Mexican drug traffickers and cartel members. The murders of many victims on both sides of the U.S.-Mexican border were traced to weapons sold during the operation. When Congress demanded a complete disclosure of DOJ records regarding the scandal, Holder refused to release them, and was held in contempt of Congress in a bipartisan vote. It should be noted that Holder was supposedly cleared of any wrongdoing after an investigation by the DOJ Inspector General, but the partisan nature of that investigation makes its validity subject to question.
- Despite having taken an oath to enforce the laws of the United States, Holder refused to prosecute banks for financial crimes, declaring them “too big to fail,” issued policy directives instructing federal prosecutors not to enforce some federal laws prohibiting marijuana trafficking, watered down the enforcement of immigration laws, and refused to defend the Defense of Marriage Act. In November of 2013, a resolution was introduced in Congress seeking Holder’s impeachment. He resigned in 2014, citing personal reasons.
- Holder was replaced by current Attorney General Loretta Lynch, who has come under fire for her notorious meeting on the tarmac with former President Bill Clinton, at a time when Clinton’s wife and foundation were under FBI investigation for numerous criminal violations.
(2) A relatively easy fix. Despite the misperception that any modification of the position of the Attorney General somehow implicates the Constitution, such is not the case. The office of the Attorney General was created by an act of Congress in the Judiciary Act of 1789, and the Department of Justice was created by yet another act of Congress in 1870. Accordingly, another act of Congress could move the position and the department, change the terms of their operation, or even abolish both. Making the department an independent operating agency, led by an Attorney General reporting to Congress, with a term—like the Director of the FBI—of ten years, overlapping presidential administrations, would greatly reduce the political influence of the executive branch, and would arguably obviate any need for the appointment of any special prosecutor to investigate wrongdoing.
(3) Political influence infecting all levels of the federal justice process. The Department of Justice, while certainly not the largest fiefdom in the federal kingdom, is extensive. In addition to the headquarters bureaucracy in Washington, D.C., there are ninety-four United States Attorneys with offices in their respective districts throughout the country. The recent, increased attempts by both parties to politicize the department have resulted in a political class of supervisors at “Main Justice,” and have increasingly politicized decisions by United States Attorneys in their respective districts. At the local levels, these decisions result in the protection of senators and congressmen from fellow Republicans and Democrats, and attacks—in the form of indictments—directed toward members of the opposing party.
(4) Career prosecutors; not political hacks. Approving the appointment of an Attorney General by a super majority of Congress (either two-thirds or three-fourths) could ensure bi-partisan approval of neutral, career prosecutors interested in doing the right thing for a fixed term of years, without any need to defer to any president or either party. Allowing the Attorney General to appoint Main Justice supervisors and United States Attorneys—subject to approval by Congress—could have the same effect at the level where most prosecutorial decisions are made. In a better world, the Department of Justice would return to its intended missions: the enforcement of the nation’s laws without political bias or interference.