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.