Louis Brownlow was a famous public administrator who in the 1930s reorganized the federal government and, in effect, created the Modern Presidency of Franklin Roosevelt.
One of his favorite sayings was that the president's Cabinet consisted of "10 SOBs trying to cut the president's throat."
He believed democratic government would not work unless there was "political control" from the top. Presidents controlled Cabinet members and they, in turn, controlled their departments.
Today the Department of Justice does not seem to follow this ancient rule of public administration. Not only does the president not appear to be in control of his attorney general -- or even want to be -- but his attorney general too often does not appear to be in control of the Department of Justice.
The Department of Justice is the "Power of Darkness," as all lawyers know. Further, as all prosecutors learn, there is a tremendous amount of discretion lodged in the Justice lawyers as to whom they will or will not prosecute. There has to be; otherwise the judicial system would be swamped and sink under the waves.
The department was badly scarred during the Nixon-Watergate days, with one attorney general going to prison and another just barely missing going there.
Since then, the result has been an "unpolitical" Department of Justice. Not only, it seems, is the president afraid to speak to the attorney general but the latter can hardly speak to his subordinates without the media trying to make a "federal case" out of it. This is absurd.
Break-ins and "enemy lists" are not really very good things, and no one actually wishes a return. But the pendulum has swung so far the other way that this business of being "upolitical" is, practically speaking cockeyed.
Item. Is it really conceivable that the attorney general should not tell his boss, the president of the United States, that a member of the president's family might be indicted if he does not register under the Foreign Agents Act?
Item. During the 1976 presidential campaign, President Ford had a completely "unpolitical" attorney general in Edward Levi, who, as a former Justice Department lawyer, dean of the Chicago Law School and president of the University of Chicago, was more than competent to hold the highest law office in the land. Still, during the 1976 campaign he authorized, and allowed to go on, an elaborate, long-drawn-out investigation of his own president, involving some political contributions from labor unions in Michigan in earlier years. The matter had already been investigated in past years and Ford had been cleared. During the hard-fought presidential campaign, the result of the second investigation was eventually the same, but clearance of the president did not come until late October. There are today Republican politicians who believe that investigation cost Ford another term. They thought that at most it should have been disposed of quickly and gotten out of the way early. But the "unpolitical" attorney general did not help.
Item. In what was perhaps the flimsiest federal investigation in recent years, the attorney general appointed a "special prosecutor" to look into the cocaine habits of Hamilton Jordan, the White House chief of staff. Even an outside newspaper reader could tell from the beginning that this one was "a dog" and should never have been started. The eventual result was that Jordan was completely cleared, after having run up a $100,000 legal fee defending himself against a miasma. To date, no principled congressman has introduced a private bill in Congress to reimburse Jordan for his legal fees.
Item -- or perhaps several items. ABSCAM. Whatever the legal niceties, this is perhaps the most virulent entrapment in legal history. Here were a number of elected congressional public servants who were going along minding their own and the public's business. Most of them had good reputations, and one or two excellent reputations. The motivation for ABSCAM, with its incredible leaks to the national press, has never been made clear. Certainly it was not a reasoned, responsible decision by the leaders of the Department of Justice to bring a series of cases. Rather, they, like the rest of us, were faced with a number of front-page newspaper stories by a not altogether responsible press. Who the leakers were -- or are -- and what their motivations were and are is not clear. Are they Savonarolas or witch-hunters of the present era? Are they self-appointed "moralists," ungirdled by any respect for their superior officers? Or do they envision future political careers for themselves?
No one seems to know. Once again, it is inconceivable that the leaders of the Department of Justice do not know who they are, but they have more than a good idea; and one wonders what action, if any, they plan to take against them.
In all such items as these, and there are many, the decisions should, in a democracy, be made by our responsible political leaders. In the American democracy, these leaders are the president and the attorney general.
In a simpler day, in the early 1940s, for an example, the Department of Justice was seriously considering bringing an antitrust suit against the Associated Press. Those days, before television, this meant taking on the presslords of the United States, who owned and controlled the AP. Some of those presslords and their lawyers went to the White House. Fdr sent one of his top political emissaries to the attorney general and to Thurman Arnold, the antitrust attorney general, to ask what was going on. FDR did not relish taking on the country's newspaper publishers any more than he had to and unless he had to. The case was carefully reviewed by the Justice lawyers with the political emissary, who in turn reported back to the president. The Department of Justice soon thereafter brought the suit and eventually won it.
Given the present atmosphere, perhaps that president and that attorney general would be on their way to jail. At least they could console themselves that the responsible political leaders in this democracy had made the decision, and not some faceless FBI or Justice minion in the outer reaches of New York or New Jersey.