US Attorney Patrick J. Fitzgerald. (Photo: Kir.com)
Goal is to restore confidence in law enforcement actions.
As a transition team for the Obama administration begins work on a Justice Department overhaul, the key question is where to begin.
Political considerations affected every crevice of the department during the Bush years, from the summer intern hiring program to the dispensing of legal advice about detainee interrogations, according to reports by the inspector general and testimony from bipartisan former DOJ officials at congressional hearings.
Although retired federal judge Michael B. Mukasey, who took charge of the department in the winter, has drawn praise for limiting contacts between White House officials and prosecutors, and for firmly rejecting the role of politics in law enforcement, restoring public confidence in the department's law enforcement actions will be central, lawmakers and former government officials say.
Also see below:
Bush, Out of Office, Could Oppose Inquiries â€¢
"The infusion of politics into the Justice Department and an abdication of responsibility by its leaders have dealt a severe blow," Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Arlen Specter (Pa.), the panel's ranking Republican, wrote in an opinion piece last month. "Great damage has been done to the credibility and effectiveness of the Justice Department."
Ron Klain, who was chief of staff to Vice President Al Gore, said that the preelection brainstorming sessions of Democrats who want to fix the Justice Department sound like "an escalating composition of woes," not unlike the health-related talk at his mother's mah-jongg games. "Oh, my knee; no, my back; no . . . " he moaned over audience laughter at a recent luncheon held by the American Constitution Society.
Topping the list of concerns is the Office of Legal Counsel, a once-obscure operation whose advice guides some of the government's most sensitive and controversial policies, from domestic wiretapping to the appropriateness of handing out public funding to religious groups.
Many of the OLC's memos on interrogation and warrantless eavesdropping remain secret, even though lawmakers have clamored for their release. Democrats say they expect to find fresh surprises when they open the legal vault.
Officials at interest groups, including the Center for American Progress and People for the American Way, have called on President-elect Barack Obama to devote significant attention to the legal office. Christopher Anders, senior legislative counsel at the American Civil Liberties Union, urged this week that the new administration withdraw all of the OLC opinions in the interrogation and detention area and replace them with "a single opinion that should be made public."
Walter E. Dellinger III, a Justice official during the Clinton administration, has encouraged the next president to recruit OLC veterans from both Democratic and Republican camps to review the national security opinions and recommend changes.
Obama will have to do a careful balancing act. At a conference in Washington this week, former department criminal division chief Robert S. Litt asked that the new administration avoid fighting old battles that could be perceived as vindictive, such as seeking to prosecute government officials involved in decisions about interrogation and the gathering of domestic intelligence. Human rights groups have called for such investigations, as has House Judiciary Committee Chairman John Conyers Jr. (D-Mich.).
"It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries," Litt said. "It would really spend a lot of the bipartisan capital Obama managed to build up."
Another critical, early judgment must be made about how to allocate scarce resources without shortchanging national security. Since the Sept. 11, 2001, attacks, more than 7 percent of the department's budget shifted to terrorism, away from drug trafficking, organized crime and white-collar misdeeds, according to an analysis by the Government Accountability Office.
Jamie S. Gorelick, who served as the department's second in command during the Clinton administration, said the resource issue poses "a very big problem."
"It appears the buildup in national security has come at the expense of criminal enforcement resources," she said. "I don't know how they are going to do it in a tight budget environment. Just sorting out whether they've cut meat or bone, or both, is going to be important."
The Obama advisers leading the Justice Department transition will have only a few weeks to make last-minute adjustments to the $25.4 billion budget for 2009. By early February, the 2010 budget will be due, another significant time crunch.
David Ogden, a chief of the department's civil division in the Clinton years, will lead the transition effort. Thomas J. Perrelli, who was a counselor to Attorney General Janet Reno and a classmate of Obama's at Harvard Law School, will serve as a deputy.
Within the Justice Department, career employee Lee Lofthus and political appointee Brian A. Benczkowski have been preparing binders for the transition team that contain sensitive information about ongoing investigations, positions the department has taken in forthcoming legal disputes and more run-of-the-mill data.
Early signals about Obama's view on presidential powers could come in several ongoing court cases that turn on executive privilege, including a House lawsuit against former White House counsel Harriet E. Miers and Chief of Staff Joshua B. Bolten that rests with an appeals court in the District. The Obama team could decide to dial back its use of the privilege in that case, and in Freedom of Information Act lawsuits filed by the ACLU, which seeks information on detainee issues in New York federal courts.
Moreover, by summer, key provisions of intelligence law are set to expire, including a controversial measure that gives the government more power to seize information from libraries under the USA Patriot Act. Civil libertarians say they will watch how Obama handles such issues and what he does even earlier, to review new guidelines for FBI agents conducting national security investigations that will take hold Dec. 1.
Personnel issues will pose another challenge, given the inspector general's findings in three blistering reports that said hiring by Bush Justice Department officials routinely flouted civil service laws.
William Yeomans, a former department civil rights division official who serves as a counselor to Sen. Edward M. Kennedy (D-Mass.), said that "the new team needs to make it very clear that ideology won't trump merit in hiring. There needs to be a comprehensive review, including what needs to be done to correct the hiring situation we now find. . . . There is a great deal of latitude among management to move people around."
One lawyer who offered Democrats advice during the presidential campaign suggested that Obama could decide to keep on several of the nation's 93 U.S. attorneys, such as Patrick J. Fitzgerald in Chicago, in a bid to demonstrate that merit trumps political connections. Fitzgerald, who prosecuted former vice presidential aide I. Lewis "Scooter" Libby and Antoin "Tony" Rezko, a Democratic fundraiser with ties to Obama, is a political independent.
Bush, Out of Office, Could Oppose Inquiries
Wednesday 12 November 2008
by: Charlie Savage, The New York Times
Washington - When a Congressional committee subpoenaed Harry S. Truman in 1953, nearly a year after he left office, he made a startling claim: Even though he was no longer president, the Constitution still empowered him to block subpoenas.
"If the doctrine of separation of powers and the independence of the presidency is to have any validity at all, it must be equally applicable to a president after his term of office has expired," Truman wrote to the committee.
Congress backed down, establishing a precedent suggesting that former presidents wield lingering powers to keep matters from their administration secret. Now, as Congressional Democrats prepare to move forward with investigations of the Bush administration, they wonder whether that claim may be invoked again.
"The Bush administration overstepped in its exertion of executive privilege, and may very well try to continue to shield information from the American people after it leaves office," said Senator Sheldon Whitehouse, Democrat of Rhode Island, who sits on two committees, Judiciary and Intelligence, that are examining aspects of Mr. Bush's policies.
Topics of open investigations include the harsh interrogation of detainees, the prosecution of former Gov. Don Siegelman of Alabama, secret legal memorandums from the Justice Department's Office of Legal Counsel and the role of the former White House aides Karl Rove and Harriet E. Miers in the firing of federal prosecutors.
Mr. Bush has used his executive powers to block Congressional requests for executive branch documents and testimony from former aides. But investigators hope that the Obama administration will open the filing cabinets and withdraw assertions of executive privilege that Bush officials have invoked to keep from testifying.
"I intend to ensure that our outstanding subpoenas and document requests relating to the U.S. attorneys matter are enforced," said Representative John Conyers Jr., Democrat of Michigan and chairman of the House Judiciary Committee. "I am hopeful that progress can be made with the coming of the new administration."
Also, two advocacy groups, the American Civil Liberties Union and Human Rights First, have prepared detailed reports for the new administration calling for criminal investigations into accusations of abuse of detainees.
It is not clear, though, how a President Barack Obama will handle such requests. Legal specialists said the pressure to investigate the Bush years would raise tough political and legal questions.
Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor's tenure. Mr. Bush used executive privilege for the first time in 2001, to block a subpoena by Congressional Republicans investigating the Clinton administration.
In addition, Mr. Obama has expressed worries about too many investigations. In April, he told The Philadelphia Daily News that people needed to distinguish "between really dumb policies and policies that rise to the level of criminal activity."
"If crimes have been committed, they should be investigated," Mr. Obama said, but added, "I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we've got too many problems we've got to solve."
But even if his administration rejects the calls for investigations, Mr. Obama cannot control what the courts or Congress do. Several lawsuits are seeking information about Bush policies, including an Islamic charity's claim that it was illegally spied on by Mr. Bush's program on wiretapping without warrants.
And Congressional Democrats say that they are determined to pursue their investigations - and that they expect career officials to disclose other issues after the Bush administration leaves. "We could spend the entire next four years investigating the Bush years," Mr. Whitehouse said.
But if Mr. Obama decides to release information about his predecessor's tenure, Mr. Bush could try to invoke executive privilege by filing a lawsuit, said Peter Shane, a law professor at Ohio State University.
In that case, an injunction would most likely be sought ordering the Obama administration not to release the Bush administration's papers or enjoining Mr. Bush's former aides from testifying. The dispute would probably go to the Supreme Court, Mr. Shane said.
The idea that ex-presidents may possess residual constitutional powers to keep information secret traces back to Truman.
In November 1953, after Dwight D. Eisenhower became president, the House Un-American Activities Committee subpoenaed Truman to testify about why he had appointed a suspected Communist to the International Monetary Fund.
Truman decided not to comply and asked his lawyer, Samuel I. Rosenman, for help. But there was little time for research.
Edward M. Cramer, a young associate at Mr. Rosenman's law firm, recalled being summoned with two colleagues to their boss's office at 6 p.m. and told to come up with something. The next morning, they helped dictate Truman's letter telling the panel he did not have to testify - or even appear at the hearing.
"I think, legally, we were wrong" about whether Truman had to show up, Mr. Cramer, now 83, said in a phone interview from his home in New York.
But the committee did not call the former president's bluff. It dropped the matter, and Truman's hastily devised legal claim became a historical precedent.
In 1973, President Nixon cited Truman's letter when he refused to testify or give documents to the committee investigating the Watergate scandal.
Mr. Cramer recalled, "Nixon used it, and we said ‘Oh, Jesus, what have we done?' "
The first judicial backing for the idea that former presidents wield executive privilege powers came in 1977, as part of a Supreme Court ruling in a case over who controlled Nixon's White House files. The decision suggested that Nixon might be able to block the release of papers in the future. But it offered few details, and Nixon never sought to do so.
In 1989 and 1990, judges presiding over criminal trials related to the Iran-contra affair blocked requests by defendants to make former President Ronald Reagan testify and release his diaries.
But the Supreme Court has never made clear how far a former president may go in trying to block Congressional demands for documents and testimony - or what happens if a president disagrees with a predecessor about making information public.
"There is no relevant precedent on the books," Mr. Shane said.