Justice Denied

The United States Department of Justice stands for enforcing the law and protecting the Constitution.  It’s multiple parts; from the FBI and DEA, to the Civil Rights and Anti-Trust Divisions, have often stood for the “good” done by the United States government.  

But Justice is also a part of the executive branch, and subject to the whims and the desires of the leader of that branch, the President of the United States.  The career employees of Justice are often placed in an awkward balance.  They are a law enforcement agency, dedicated to balancing justice with “Qui Pro Domina Justitia Sequitur”emblazoned on their seal (who prosecutes on behalf of justice).  But they are led by a political appointee, and are an arm of the Presidency.

Blind Justice

And it is this balance between “blind justice” and politics that has been the story of Justice for the past fifty years.    The modern story begins with the infamous Director of the FBI, J. Edgar Hoover.  He ran the Bureau with an iron hand, using its information gathering skills to get “dirt” on national figures and extort control of them.  It worked, and Hoover was left as a dictatorial authority in his agency for forty-eight years, from the roaring twenties into the 1970’s.  

To balance Hoover’s power, in 1961 newly elected President John Kennedy placed his brother, Robert Kennedy, as Attorney General.  Bobby was his brother’s closest confidant, his campaign manager, and the legendary Kennedy family “hatchet man”.  The President might be glib and smiling; Bobby was the one who said who was fired.

Bobby took the Justice Department in the direction of promoting civil rights, much to Hoover’s dismay.  While Bobby was sending US Attorneys in to prosecute Ku Klux Klan members, Hoover was wiretapping Martin Luther King Jr, spreading rumors of Communism and marital infidelity.  Hoover was too powerful to remove, but Kennedy served as a check against him. 

After the President was assassinated, and Lyndon Johnson took over, Bobby Kennedy soon left leadership of the Department.  But, his successors continued Johnson’s dedication to civil rights. Hoover also remained, using his extraordinary powers to attack the anti-Vietnam War movement.  

Watergate

It was in the middle of the Vietnam Crisis that Richard Nixon won the Presidency.  Nixon followed Kennedy’s lead, putting his campaign manager John Mitchell in as Attorney General.  Mitchell was focused on one thing, keeping Richard Nixon in power as President.  And as Nixon’s political philosophy and Hoover’s were much more compatible, the FBI became a part of the Nixon machine.

Nixon’s fall in the Watergate Crisis was much more than just a minor break-in at the Democratic National Committee offices.  Millions of dollars of campaign funds were spent on illegal actions, a White House “team” pursued Nixon’s agenda with illegal acts, and most of these actions fully involved the White House, the President, and the Attorney General.  By Nixon’s resignation, the country saw a Justice Department fully co-opted into illegal politics.  Mitchell went to jail, along with much of Nixon’s senior staff.

Independent Justice

After Watergate, the Justice Department, including the FBI (Hoover retired under a scandal of his own making) distanced itself from politics.  No longer was the Attorney General an extension of the Presidential campaign, and the Directors of the FBI were chosen for ten-year terms.   The Department took an apolitical stand, with the connection to the Executive solely at the senior level.  Perhaps this was most famously seen with President Clinton’s Attorney General Janet Reno, who remained clear of an Independent Counsel investigation of her boss.  That investigation, led by Ken Starr, resulted in the Clinton’s impeachment.

George W. Bush brought in a more political leader, John Ashcroft, and later Alberto Gonzales.  Barack Obama also tried to split the difference, with Eric Holder still asserting independence while serving the President’s agenda.  

My Roy Cohn

But Donald Trump made it clear from the beginning that he wanted an Attorney General to “have his back”.  Jeff Sessions got the job, but made a fatal mistake by following Department guidelines and recusing himself from the Russia investigation.  He left Trump undefended, and  Trump made Sessions’ life miserable, constantly deriding him even as Sessions tried to fulfill the rest of the Trump agenda.  

And when Sessions finally resigned, Trump found exactly what he was looking for, his own Bobby Kennedy or John Mitchell:  he found Bill Barr.  Barr auditioned for the job by writing an unsolicited twenty-page memo in support of the President, and immediately began to make the Justice Department into his own image.

Justice and the White House

One of the most powerful forces Barr has used is the internal Department legal evaluator, the Office of Legal Counsel (OLC).  The OLC writes the legal opinions for the Justice Department, and with Barr’s ascension, began to author a series of memos that backed Barr’s extreme view of executive power.  Those opinions become the “opinion” of the Executive Branch, and, short of a Federal Court opinion, has much of the force of law.

So when the OLC opined that the “Whistleblower Report” did not require Congress to be notified, or even Federal investigation, it became the basis for the White House defense of their actions.  And when the President’s lawyers in the Senate trial for impeachment quote the OLC as defining opinions, it’s should be no surprise that they back the President.

It took forty years for the Department of Justice to revert back to an arm of the White House after Watergate.  When the Trump era is finally over, it will take action by both the Congress and the new President to return to some semblance of impartiality again.  

Until then, it is impartial justice denied.