A New Agenda for Justice

By Jamie S. Gorelick
Tuesday, August 28, 2007

The next attorney general will inherit a demoralized Justice Department that has been cut adrift from its historical values and well-honored traditions. New leadership offers an opportunity for Justice to return to its best traditions under both Democrats and Republicans. Here are 10 priorities that would help the next attorney general guide the department back on course:

  • Restore credibility and comity with Congress. Having the backing and support of Congress is critical. Lawmakers will give Justice the room it needs if they believe that the attorney general and his or her subordinates are straightforward in their dealings and open to legitimate oversight.

  • "Take care that the laws be faithfully executed." Every president promises to ensure that the government adheres to the law and the Constitution. The Justice Department's Office of Legal Counsel has historically been -- and needs to be -- the voice for the rule of law in the president's deliberations, providing an honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies. This mandate applies with special force where the office's advice is unlikely to be subject to review by the courts. Where an opinion is so widely ridiculed that the department has to withdraw it, as was the case with the first "torture memo," confidence in the department's fealty to the law is undermined.

  • Bring the professionals back. The department's excellence has always depended on the talent and energy of its dedicated career professionals. Today, it has a superb corps of senior career lawyers who have largely been excluded from deliberations on major cases and policies, to the detriment of the department and its work. Bringing these professionals back into the conversation by restoring the relationship between political appointees and career staff will improve morale and the quality of decisions.

  • Depoliticize hiring. Stop considering applicants' political backgrounds in the hiring and promotion of career lawyers. Equally important, political appointees should have experience in the areas they are overseeing, rather than experience as political operatives. If political appointees have ample relevant experience, they will command the respect of career lawyers by virtue of their intellect and judgment.

  • Restore order to the relationship with the White House. Before 2001, the White House had accepted limitations on its communications with the Justice Department so the American people would be assured that the department's enforcement decisions were based on law and facts. Justice should reestablish this expectation by limiting talks on enforcement matters between the White House and the department from the hundreds who can discuss these things today. Communications should be between only the White House counsel and his or her deputy and the attorney general and his or her deputy and senior aides.

  • Keep politics out of public integrity cases. Cynicism about department decisions is most likely to arise when Justice prosecutes a politician -- or decides not to -- and when decisions about alleged election fraud are announced just before elections. The department should return public integrity decisions to career prosecutors and reinstate the long-standing practice of refraining from announcing any election-related investigation or prosecution in the period before an election.

  • Maintain vigilance against terrorism. Use the tools the department has been given to help keep our country secure. The new National Security Division, for example, must work seamlessly with traditional crime-fighters.

  • Fight crime. The department's historic mission as the nation's leading crime-fighter is in jeopardy. For the first time in decades, violent crime is on the rise. Justice should seek money for the hiring of local police -- such as the Clinton-era COPS program that put 100,000 police officers on our streets. It should also fund the many open slots for federal prosecutors or eliminate those positions, if they aren't necessary, rather than leave them on the books without resources.

  • Respect rights. Justice needs to show that it is worthy of the power and authority it has been given. It has committed to policing itself in the exercise of its powers under the USA Patriot Act and Foreign Intelligence Surveillance Act. The new attorney general should make sure it does so.

  • Lead with values. The attorney general should be an inspiring figure who reminds us of the values that make us strong: secure communities and vibrant individual rights. He or she should be a voice for the rule of law, which demands thoughtful and fair law enforcement and a steadfast commitment to our most cherished liberties.

    Just outside the attorney general's office is the inscription "The United States wins its point whenever justice is done its citizens in the courts." Those words should remind the next attorney general that even when the department loses a case, it fulfills its mission so long as justice has been served.

    The writer, an attorney with Wilmer Hale, was deputy attorney general in the Clinton administration from March 1994 through March 1997.

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