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Obama's Justice Department: Filling in the Blanks

The transition to a new administration is underway and people are naturally curious about what to expect at the Department of Justice. Asked to check into this, I called on friends inside and outside the Justice Department, on the Hill, and in think tanks. No one seems to have a very clear or full picture yet, although there are some hints in specific areas which I’ll deal with below.

Obama will need to act quickly to fill not only the attorney general slot, but the slots of all the assistants, deputies, and all the Schedule C (political) positions in the Justice Department if he hopes to put his stamp on its operations. The Bush administration never did, and the animus of the generally liberal civil servants along with the failure to take charge resulted in no end of trouble, particularly since it became ever more difficult to lure competent lawyers into such a hostile, thankless environment due to time and natural turnover.

Obama will be luckier than Bush because, unlike his predecessor whose transition was shamefully impeded by Clinton, Bush has been gracious and helpful. Moreover, he will have a sympathetic Congress of the same party to help move his many appointments through more smoothly and quickly. Still, in the long void which preceded the election, Senator Schumer exercised unusual control over the Justice Department — its appointments and operations — and it remains to be seen if he thinks he should cede any of this control to Obama or how Obama would handle this encroachment.

Since personnel is policy, we will not have a particularly clear picture until we see some nominations (especially since many of his positions on the issues were muffled, distorted, or falsified in the campaign period).

For the top spot, it appears from press reports as if Obama has settled on Eric Holder for the job of attorney general. National Review summed up the view of many in an editorial published on November 19, when they warned that Holder represented a return to a “9/10 mentality” where “a national-security outlook marked prominently by its lack of seriousness about the terrorist threat” would be the consequence. NRO also criticized Holder’s involvement in several of the high profile pardons made by President Clinton at the end of his term:

Much has been made, and appropriately so, of Holder’s untoward performance in the final corrupt act of the Clinton administration: the pardons issued in the departing president’s final hours. Of these, most notorious is the case of Marc Rich, an unrepentant fugitive wanted on extensive fraud, racketeering, and trading-with-the-enemy charges — but granted a pardon nonetheless thanks to the intercession of his ex-wife, a generous donor to Clinton’s library and legal-defense fund.

Holder’s role was aptly described as “unconscionable” by a congressional committee. He steered Rich’s allies to retain the influential former White House counsel Jack Quinn (Holder later conceded he hoped Quinn would help him become attorney general in a Gore administration); he helped Quinn directly lobby Clinton, doing an end-run around the standard pardon process (including DOJ’s pardon attorney); and he kept the deliberations hidden from the district U.S. attorney and investigative agencies prosecuting Rich so they couldn’t learn about the pardon application and register their objections.

The NRO editors conclude that Holder would be a “terrible selection” and that out of “any Obama cabinet nomination that Republicans feel moved to oppose, this should be it.”

But as it stands, Holder is not officially the nominee yet. There are other potentials for the top spot and even if they aren’t chosen, they could very well be in line for other posts in an Obama Justice Department:

  • Jamie Gorelick, America’s own bureaucratic “Typhoid Mary,” has been suggested by the press. I think this unlikely because of her extremely heavy negatives, and reportedly she has indicated an unwillingness to take the position in any event.
  • Arizona Governor Janet Napolitano represented Anita Hill in the Justice Thomas nomination hearings and was an early supporter of Obama.
  • Deval Patrick, Governor of Massachusetts, is a long time friend of Obama and presidents often like to have an attorney general with whom they have a personal relationship. He was former assistant attorney general of the Civil Rights Division (a division openly hostile to the present administration) and formerly general counsel of Coca-Cola. Despite these credentials, however, he has made numerous admitted mistakes as his state’s chief executive, including spending lavishly of the state’s diminished revenues for his own and wife’s benefit and improperly acting on behalf of Ameriquest while governor.
  • Of course, there are countless dark horses Obama might choose. If he’s looking for a smart lawyer, well-respected on both sides of the aisle, he could do far worse, it seems than, naming Inspector General Glenn Fine of the Justice Department. It would represent real change to have a well respected department career employee in the top slot, but I wouldn’t count on that happening.

At the lowest staffing levels, Obama will be luckier than his last two predecessors. While it hasn’t gotten as much attention as other businesses, major law firms are going under, many young partners and associates are facing layoffs and dismissals, hiring is down, and the huge salary disparities between private and public employment may seem a less significant drawback to public service than it has been for decades. On the other hand, there is likely to be less tax revenues available to fund any of the presidents-elect’s more ambitious undertakings. So he may have a shot at better staffing, but at the cost of more large programmatic shifts.

The Department of Justice is composed of 61 different agencies, some of which (like the solicitor general’s office) have very defined, non-political roles and will continue on with only minor changes, if any. Others are highly political like the Civil Rights Division, and it will be as interesting to see who is selected to head that and similar departments as it is to see who is nominated for the attorney general slot.

Up until now Obama has operated as something of a cipher, with all sides projecting on to his blank screen how they think he will come down among the various competing interests. Now he has to decide, and we’ve not much in the way of solid clues to help us puzzle this out.

Respect for the Constitution

Obama seemed very willing to exert improper pressure on his critics for running ads opposing him and on TV stations which ran those ads, suggesting not just a thin skin but an insufficient appreciation for his critics’ right to free speech. Was this just a campaign stunt or can we expect him to try to use the Justice Department to extend such vendettas?

Clearly his views on the Second Amendment have stirred concerns. Gun and ammunition sales are soaring.

Firing of U.S. Attorneys

Much was made of the Bush administration’s firing of some U.S. attorneys, something well within the prerogative of any president as a general rule, and it is not at all uncommon to replace most of them at the onset of a new president’s term provided the removal doesn’t interfere with sensitive ongoing work. In Chicago, U.S. Attorney Patrick Fitzgerald has convicted Obama’s crony and supporter Tony Rezko and seems well into an investigation of political corruption in Illinois. Will Obama fire him when he takes over? The Chicago Tribune’s John Kass reported that Obama pledged he wouldn’t do that, but blogger Beldar has some questions about that report:

But the promise he [Kass] describes appears to have been only verbal and before a small (albeit important) audience.

More significantly, that promise was made before Rezko was convicted on June 4, 2008. Rezko still hasn’t been formally sentenced, and there are rumors that Rezko may be cooperating now with Fitzgerald in hopes of obtaining a more lenient sentence. Just last Thursday Fitzgerald’s office announced the indictment of “William F. Cellini, an Illinois Republican Party leader … for his alleged role in the fraud scheme that led to the conviction of [Rezko.]” And Kass also makes the excellent point that there are other big political fish in Illinois besides Rezko — some of whom, like mayoral brother Bill Daley and U.S. Rep. Rahm Emanuel, might be potential Obama Administration appointees — who could find themselves in Fitzgerald’s net, if he’s allowed to continue casting it.

Thus, what Kass credits Obama as having said to the Tribune in March — before Obama even had the Democratic nomination wrapped up — is now so stale as to be long past the normal “expiration date” of anything said by the Obama campaign. This question needs a fresh answer, made on the record and without wiggle room.

Even with only a day left until the election, I have no doubt that word will get to Sen. Obama of Kass’ column. But I will be stunned if Obama either answers it, or permits any reporter close enough access to even ask it. And without such a fresh answer, I suspect Sen. Obama’s “promise” to the Tribune from last March isn’t worth even as much as Mr. Kass’ busted hyperlink.

Investigation and Prosecution of the Prior Administration

Congressman Conyers and others have announced their intention to continue their unending investigations of the Bush administration after they’ve left office. There is at least one report that Obama is not likely to cooperate with those on the Hill who wish to embroil him and the Department of Justice into endless investigations of President Bush and his aides.

But as with all things Obama, his position is not crystal clear.

Obama sent a clear signal that — unlike impeachment, which he’s ruled out and which now seems a practical impossibility — he is at the least open to the possibility of investigating potential high crimes in the Bush White House. To many, the information that waterboarding — which the United States has considered torture and a violation of law in the past — was openly planned out in the seat of American government is evidence enough to at least start asking some tough questions in January 2009.

In a similar vein, the Congress is still trying to force Harriet Miers, Josh Bolten, and Alberto Gonzales to respond to its subpoenas. How will Obama respond to that pending dispute?

[Lawyers speaking for Obama said]Obama will likely broker a compromise with the Democratic-led Congress over whether to force top Bush aide Joshua Bolten and former aide Harriet Miers to testify in front of lawmakers or hand over documents about the 2006 firings of nine U.S. attorneys.

Democrats say the firings, which led to the resignation of former Attorney General Alberto Gonzales last year, were politically motivated. That charge was bolstered by an internal Justice Department investigation, which in September found ”substantial evidence that partisan political considerations played a part in the removal of several of the U.S. attorneys.”

The Justice Department has maintained that Congress can’t force top White House aides to testify because it infringes on the executive branch’s independence.

A federal appeals court last month refused to immediately enforce the House Democrats’ subpoenas, ruling that time will run out on this year’s congressional session before the thorny legal skirmish could be resolved.

Litt, who is informally advising the incoming Obama administration, predicted the Democrats will move quickly next year to push forward with the subpoenas.

He called it reasonable to believe that House Speaker Nancy Pelosi will ask the White House to reconsider its use of executive privilege in the dispute.

However, Litt said, Obama more likely will hammer out a compromise for Democrats to get at least some of the information they want. Litt said it would likely be done without forcing the subpoena issue that could set a long-lasting precedence for future White House dealings with Congress.

Culvahouse said he agreed that a deal likely will be stuck between the two sides in a political detente that had eluded the Bush administration

This is not an unwise position to take especially as he is entering the White House at a perilous time and might well find himself in an identical position. The prospect of having actual responsibility surely focuses the mind on the value of maintaining executive privilege.

Drug Policy

It’s unclear what his drug policy will be.

Given his experiences, it’s not surprising that during his 2004 Senate campaign Obama told students at Northwestern University, “I think we need to … decriminalize our marijuana laws.” But this year he backed away from that position. His campaign claimed he really meant “we are sending far too many first-time, nonviolent drug users to prison for very long periods of time,” and “we should rethink those laws.”

There’s one final note I have about Justice Department policies at this difficult time from a former FBI agent with whom I have from time to time discussed operational concerns.

Intel Oversight

Department of Justice oversight of the FBI through OIPR has mushroomed beyond anything that was ever seen before. Not only has the FISA process become clogged with hands on–like, hands all over every aspect–oversight by attorneys with no investigative experience, but the same thing has happened to the FBI’s use of informants: exponential increase in bureaucratic oversight by OIPR attorneys, compromise of confidentiality given to informers, etc. Emphasis is increasingly on process rather than the actual work product. The question is: how long can this continue before the inevitable weaknesses of this type of bureaucratization begin to show up in the real world? All this is likely to increase under the new Obama administration, even if he doesn’t repeal the intel executive orders. Good intelligence organizations ultimately rely on the day to day information gathering, since terrorists sooner or later learn to fly under the radar of electronic gathering.

That said, the new AG Guidelines sound like a major improvement in streamlining and rationalization. Can that positive development overcome the increase in cumbersome oversight by inexperienced lawyers? We’ll see. Another question: what effects will the financial crisis have on allocation of resources and manpower as between intelligence and fraud?”

In sum, the staffing and policy direction of the Department of Justice under Obama will be a very important part of his administration. Experience teaches that we can expect some surprises along the way to confirmation of so many officials.

Those personnel choices may signal a great deal to Washington watchers — more than the scant and often conflicting or amorphous record of the president elect has revealed previously.

* An earlier incarnation of this article mis-identified Arizona Governor Janet Napolitano as being the Governor of New Mexico. PJM regrets the error.