Building 44: The Justice Department
Thursday, November 13, 2008; 10:00 AM
Washington Post Justice Department reporter Carrie Johnson was online Thursday, Nov. 13 at 10 a.m. ET to examine the transition process in the administration's legal agencies, including the people who could be tabbed to lead them.
Obama Team Faces Major Task in Justice Dept. Overhaul (Post, Nov. 13)
The transcript follows.
Carrie Johnson: Good morning, and thanks so much for joining me today to talk about new priorities for the Justice Department in an Obama administration. I'm happy to chat about policy, personnel or whatever else may be on your mind, and I appreciate all the e-mails from readers offering their own suggestions for Department of Justice reform. Those are welcome here too.
Washington: What are the new Justice Department's priorities going to be? In what areas can we expect the greatest change in policies and personnel? Will there be a scaling-back of "morality enforcement," such as obscenity and marijuana prosecutions? Also, it has been reported widely that disgruntled senior attorneys from the civil rights division left en masse during the past four years. Do you expect that they will return?
Carrie Johnson: Hi Washington. Thanks for the question.
Legal and criminal justice issues were not paramount on the campaign trail. That said, historically Democratic administrations have cared and spent more on civil rights enforcement, environmental protection, health care fraud and abuse, and antitrust issues -- though those may be complicated by the present and unfortunate state of the economy. There is some reason to believe an Obama Department of Justice will not depart radically from an emphasis on national security, though it may be more open to releasing legal opinions and creating additional protections for civil rights.
In the Bush years, obscenity and human trafficking have been a priority, but I have not heard President-Elect Obama nor Vice President-Elect Biden emphasize those issues. Biden is the author of the 1994 crime bill, and he may have some influence in these areas. One more thing: we may finally see the elimination of sentencing disparities for people who receive longer prison terms based on the type of drugs they carry (powder etc.). Some very smart legal scholars, such as Doug Berman, as well as some Democrats, have predicted this since the election results emerged.
Baltimore: There was an exodus of attorneys from the Civil Rights Division during the Bush years, as well as a refusal by the Bush people to hire civil rights lawyers who were not "conservatives." What efforts will be made to reach out to the people who departed from or who were locked out the Civil Rights Division by Bush?
Carrie Johnson: Yes, the Civil Rights Division has been among the most unhappy for the past several years. Justice Department Inspector General Glenn Fine has yet to release a report chronicling political interference and considerations there, and there is an ongoing criminal investigation of a former DOJ civil rights official based on his testimony to Congress.
Many career lawyers were moved to different jobs in Civil Rights, dating to the time when John Ashcroft was attorney general and continuing (and possibly growing more intense) once Alberto Gonzales took that job.
Democrats on Capitol Hill and elsewhere already have been talking about improving morale within the civil rights unit and making sure that people in supervisory positions actually believe in the laws they are supposed to be enforcing.
This will be a hotspot to watch starting in January.
Seattle: Other than with the attorney general, how does the new administration begin? There are so many middle managers and working-level attorneys gone, and those left are demoralized to the nth degree. Where's the budget to do all that will need to be done?
Carrie Johnson: Seattle, this is such a big challenge -- starting with the rhetoric and the need to inspire career civil servants on a budget that no doubt will be tightening even further next year.
That said, former DOJ leaders including Deputy Attorney General Jamie Gorelick say that the quality and credentials of people appointed to top Justice jobs, and to the 93-odd U.S. Attorney posts, really could send an energetic message.
As President-Elect Obama said on the campaign trail that much prioritizing will need to be done. The new attorney general will have a lot of work on his plate from day one onward.
KarenLS: It will be hard to fix the Department of Justice in one or even two presidential cycles. You can't get around the civil service laws in order to get rid of everyone who was hired because they had a limited and skewed view of justice. They are probably so deeply embedded in the department that it would take a wholesale dismantling and a restart from scratch to put it to rights.
Carrie Johnson: Karen, Senate Democrats and the inspector general say they have noticed some improvement since retired federal judge Michael Mukasey took over as attorney general this past winter. Earlier this year Mukasey announced he would reach out to candidates who had been ignored for the elite honors program and other posts, to let them know they were welcome to apply for current jobs at the department. And some Democrats say they believe that many political appointees (including those involved in the botched U.S. attorney firings and unlawful hiring practices) departed long ago. So the challenge for the new team at the DOJ will be finding those who remain, evaluating them and perhaps moving them into different jobs while avoiding allegations that they are just as political as the people who came before them.
mischanova: The article ends by suggesting the next administration keep the 93 US attorneys to start. Wrong: They start by accepting their resignations and sending them on their way back to Liberty College and the other black holes they came from. As former Attorney General Gonzales can point out, they serve at the pleasure of the president. If this group passed the Bush vetting process, they probably aren't worth a darn. Send 'em packing. Seriously, who in the GOP could raise a fuss now? Anyone who would undoubtedly defended the Bush purge of the U.S. Attorney ranks. Their words could be used against them.
Carrie Johnson: Thanks for your comment.
Arlington, Va.: Will the next attorney general seek a new FBI director?
Carrie Johnson: The FBI director serves a 10-year term precisely to insulate that important job from political considerations and calculations. The current occupant, Robert Mueller, began work days before the Sept. 11, 2001, attacks, and his term will not expire until 2011. He has given no public hint that his departure is imminent, and people who know him and closely follow his work say Mueller would be unlikely to leave during a very delicate government transition -- the first since Sept. 11.
Mueller has tried to reorient the bureau into a proactive intelligence-gathering powerhouse, but he has faced many challenges in terms of moving the slow bureaucracy and protecting civil liberties. Expect to see more oversight on both fronts from the inspector general and from the new Obama team at Justice.
New York: The Bush administration placed many unqualified and political lawyers who barely passed the bar into the Justice Department; will the Obama administration be able to remove them, or are we as a nation stuck with hacks who are less then legally bright and without bias?
Carrie Johnson: Hi New York. Former DOJ officials from Democratic administrations say they think many of the worst offenders have left Justice. For instance Monica Goodling, the White House liaison and former counselor to the attorney general, resigned last year along with more than a dozen other political appointees.
Prominent Democratic lawyers with ties to previous administrations also say it will be imperative to institute rigorous evaluation programs for those who remain. They want to be careful not to demoralize (further) the civil service ranks at Justice, while guarding against the prospect that some under- or unqualified people have been hired as immigration judges, staff attorneys and the like.
sque1: The Justice Department always will be political. When the Democrats ran it, it was just as bad -- and I doubt that it will be any different in the future. There was no one more political than Janet Reno.
Carrie Johnson: Thanks for your comment. It is no doubt true that there are benefits to winning a presidential election, and one such perk is the ability to appoint people to government jobs who share your worldview. The problem identified by the Justice inspector general, however, was the improper use of ideology and partisan criteria for hiring career civil servants at some points during the Bush administration. That is a no-no.
Phoenix: How can we correct serious legal problems without pursuing all those who potentially broke the law? Bipartisanship may be important, but you simply cannot overlook lawbreaking in order to play nice, can you?
Carrie Johnson: Phoenix, this is going to be an essential question for Justice Department leaders next year.
President-Elect Obama has said he does not want to spend a lot of time and energy looking backward toward the sins of the past, but in a few interviews on the campaign trail he also has said that one cannot ignore lawbreaking and criminal violations. How he and the people he names to senior Justice posts balance those equities will be very telling.
If they resist calls from Democrats on Capitol Hill and interest groups to prosecute people -- say, those who were involved in domestic wiretapping and harsh interrogation practices -- the new team will be sure to take some political heat.
Frankly there is going to be so much on the to-do list -- starting with the economy and figuring out how to protect national security without shortchanging resources devoted to garden-variety crime -- that this issue may not be the first they consider in mid-January.
lorddunsmore: Obama should appoint a federal judge who is respected by both parties (if there is one left) to run Justice -- not a political hack.
Carrie Johnson: Thanks for your message.
Washington: I fully appreciate the potential political pitfall for President Obama in the pursuit of past lawbreaking by members of the Bush administration. But I find the attitude of insouciance about serious potential lawbreaking from folks in your story to be puzzling. There are very strong indications that on several key fronts, there was authorization of egregious and flagrant lawbreaking -- on very serious matters, such as electronic surveillance and torture. Surely there is a way to pursue accountability for potential lawbreaking that is not overly politicized, no?
Carrie Johnson: We're gonna have to see about this. The problem with many of these specific cases is that some of the conduct was blessed by lawyers in the Justice Department Office of Legal Counsel and by President Bush himself. Relying on the advice of lawyers can negate any criminal intent, which is required to prove a criminal violation. That's why so many people have been ticked off about the questionable Office of Legal Counssel advice dispensed after Sept. 11 -- it essentially can provide a "golden shield" for the line agents and employees who say they relied on it.
New York: I have been with the Department of Justice for more than 30 years. You and other journalists continually describe the morale of Justice employees as low. I take issue with that description. If you would expend some effort investigating the morale issue in offices outside the D.C. metro area, where the bulk of the important work of the department is accomplished, you would find that the offensive conduct taking place within the walls of Main Justice has not impeded the efforts of those of us in the hinterland. I believe your continued misdescription of the "malfunctioning" of the federal justice system does a disservice to the federal employees who are carrying out the bulk of the Justice Department's responsibilities, as well as to your readers, who are obtaining a false impression from your reportage. What will you do to cure this deficiency?
Carrie Johnson: Thanks very much for your message -- I have heard from others in the field who say it is working quite well and that it is well-insulated from the problems at Main Justice in Washington.
While that may well be true in a majority of cases, what Sens. Leahy and Specter and as many others have flagged is indeed troubling. Many criminal defendants have cited the misconduct (as described by the Justice inspector general) to cast public doubt on the reliability of the criminal justice process and law enforcement decision-making.
That is a real problem and it should not be ignored.
Washington: Obama has advertised himself as post-partisan, but what do you think the new administration will do about those individuals hired purely based on politics, and who likely would not have been qualified otherwise for the job, who have burrowed in at the line or lower supervisory levels? It's easier to get rid of or move someone higher up, such as a section chief...
Carrie Johnson: Well, a lot of these people -- including the immigration judges -- enjoy civil service protections that will be difficult if not impossible for the new Department of Justice team to penetrate.
So what the folks who have been talking about this at conferences say is that they will need to do job evaluations and the usual review of lawyers who transferred from political into career posts in the six months or year before the election.
It is easier to move a section chief than a line attorney, as you note. And there could be more incentive to burrow in, now that the economic prospects/job situation is more dire. A lot of law firms have been shedding junior lawyers -- and even some partners -- with the economic downturn.
Washington: Two things that Justice should require of new hires: Demonstrate ability to perform discovery tasks and to litigate in a courtroom in front of a jury, and demonstrate that the applicant can be admitted into a post-graduate law program and can earn an advanced law degree. Those two criteria alone will cull out the least competent political hacks. Monica Goodling could not have passed either criteria.
Carrie Johnson: Thanks for your suggestion.
Princeton, N.J.: Will there be, can there be a general housecleaning in the Office of Legal Counsel and the Inspector General's Office and other such accountability offices?
Carrie Johnson: Thanks, Princeton. My understanding is that the job of Office of Legal Counsel chief is a political position (Steve Bradbury has been serving in an acting capacity there because the Senate has refused to confirm him, citing all the opinions that came out of that office earlier in the Bush era). But other jobs at the office are career civil-service spots, and indeed people like Walter Dellinger -- a former chief during the Clinton administration -- have pointed out it was historically a hotbed of people with diverse legal and political views.
Folks at interest groups, including People for the American Way and the Center for American Progress, have pointed out the selection of Office of Legal Counsel chief by Obama will be more important than ever before. The confirmation hearing should be fascinating (and not only for we wonky D.C. types).
Alexandria, Va.: When do you think we will see new federal jobs open up? And how soon do you think the new transition team will want them filled?
Carrie Johnson: John Podesta, who is leading the overall transition, told reporters this week that cabinet-level posts would not be filled until after Thanksgiving, so first we need an attorney general. After that, nominees for the other top jobs (criminal division, civil division, solicitor general, office of legal counsel) will begin to flow.
Anonymous: You said: "While that may well be true in a majority of cases, what Senators Leahy and Specter, as well as many others, have flagged is indeed troubling. Many criminal defendants have cited the misconduct (as described by the Justice IG) to cast public doubt on the reliability of the criminal justice process and law enforcement decision-making. "My question is, what does that have to do with your erroneous reporting on the "low morale" of Department of Justice employees? I understand that there are serious problem in the management of DOJ, but those problems have not effected the way justice is being delivered to a substantial majority of the U.S. Please answer the question.
Carrie Johnson: If you had been on the other end of conversations with career DOJ lawyers bemoaning their fate and watching the calendar -- as I have -- you would be hard-pressed to deny there are morale problems at Main Justice, at least in pockets.
The issue I was trying to flag is that public confidence in the justice system has eroded because of the scandals of the past few years -- a point made by Democrats and Republicans on Capitol Hill and by veterans of administrations and White Houses occupied by people from both political camps...
Concord, N.H.: Hi Carrie - thanks for taking questions. This was from your article today: "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."
Do you think Obama is going to do that? It would be incredibly disappointing if he glossed over all of the wrongs committed at the Department of Justice in the past eight years in a show of "bipartisanship." Also, any word on who could be taking Mukasey's position? I like Patrick Fitzgerald myself...
Carrie Johnson: Hi there. Three of the prominent names being mentioned for attorney general are Janet Napolitano, the two-term governor of Arizona who has an extensive background in law and criminal justice; Eric Holder, a former judge, U.S. attorney and second-in-command at Justice during the Clinton administration; and Deval Patrick, the governor of Massachusetts, who led the Justice civil rights division during the Clinton years. Some dark-horse candidates including judges, such as Merrick Garland of the D.C. Circuit Court, and some Republicans such as Jim Comey and Patrick Fitzgerald also are coming up on the Washington cocktail party circuit. But because the Obama team has been so tightlipped, it is hard to discern right now which are real and which are not.
Washington: Has anyone in an oversight position, such as Congress, ever asked why it took the Inspector General seven years to start investigating the partisan improprieties occurring within the department that were clearly evident for many years in the press and other sources?
Carrie Johnson: My understanding is that the inspector general began investigating more than a year and a half ago, but the work has been painstaking and has taken a while to emerge. In a couple of his reports, Glenn Fine has noted that his team interviewed scores of people, and has reviewed hundreds of thousands of documents and computer hard drives. One report, on civil rights division troubles, has been held from release because of an ongoing grand jury probe. So there are other equities at stake here.
St. Louis: Hi Carrie. I'm just wondering if you've heard of any instances of political appointees trying to burrow in during this transition, and whether you have any idea of how many career positions were filled by Monica Goodling. Thanks.
Carrie Johnson: St. Louis, we don't yet know for sure. Sen. Schumer of New York and Sen. Feinstein of California wrote to current Justice managers to flag this issue earlier in the year. Historically, according to the Government Accountability Office, the total volume of "burrowing in" has been low -- but in a department like Justice and in an economy like this, it definitely is on the radar screen for the incoming team.
Re: We're gonna have to see about this.: I was careful to mention the authorization of potential criminal wrongdoing -- I was thinking precisely of the people in the Office of Legal Counsel and at the top of the Bush administration, not the somewhat cursed officers in the field who got preapproval for torture and other problematic conduct.
Carrie Johnson: Thanks...
Washington: One of the things I've been concerned with is, am I the bad guy? My feeling -- however misplaced -- is that in the name of security, everything I do is being watched by a host of U.S. government entities, and I'm a bad person who simply hasn't been caught yet. How does the administration give people a sense of their again having the freedoms Americans fought to obtain and preserve?
Carrie Johnson: Well, domestic intelligence gathering is a touchy subject, and it is sure to be reviewed by the Obama team from the point of view of civil liberties. How far away from the Bush approach they will be willing to go is an open question. That said, I believe President-Elect Obama has expressed at least some support for a domestic intelligence czar and greater oversight over the FBI in that arena. The new Justice team also will review guidelines for the FBI's national security investigations (which allow agents in early stages of probes to engage in pretext interviews, conduct long-term surveillance and take other intrusive steps without a factual predicate). Those guidelines are set to take effect Dec. 1, and they have been the focus of criticism from the American Civil Liberties Union and also Muslim groups -- which fear their members will be subjected to racial profiling.
Washington: Mukasey was quick to say that there were no crimes committed in the hiring scandals, and that Goodling and Sampson left the department so nothing could be done. But this is a department that can be quite creative in finding a crime to prosecute -- when it actually wants to. For example, if you cannot actually prove bribery, charge them with "conspiracy to deprive the government of the faithful services of Mr. Bribee." And so on. There is no reason to accept Mukasey's quick "no crime" conclusion and give up on pursuing those who turned the Justice Department into a hiring hall for dimwitted true believers, is there?
Carrie Johnson: Attorney General Mukasey has named Nora Dannehy, a veteran public corruption prosecutor who won a conviction against the Connecticut GOP governor, to examine whether crimes were committed in the botched firings of nine U.S. attorneys or in statements that were made to Congress regarding that process. Dannehy has been on the job for only a few weeks, and no public reports have emerged about her focus, but people from both political parties praise her diligence and independence.
New Haven, Conn.: As a soon-to-be JD, I wonder if there's going to be a lot of turnover in general at the Justice Department. Lots of jobs open, perhaps?
Carrie Johnson: New Haven, the government yesterday issued the famous "plum book" of political jobs, which is worth reviewing. Generally the best entry point for career civil service jobs in the Justice Department has been its elite honors program...
Washington: Ms. Johnson, thanks for doing this chat. Why are U.S. Marshals still subject to Senate confirmation? This is reportedly the No. 1 logjam in confirmations -- at any given time, more than a third of the offices are vacant, and are filled by career deputies acting as district marshals. Any thoughts about why the appointive position still exists?
Carrie Johnson: This is very interesting. I don't know the answer to your question, but I will find out and report back to you if you send me your e-mail address.
Carrie Johnson: Thanks again for your time and for the provocative discussion. Maybe we can all chat again when we have some nominees in the pipeline!
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