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Stopping the Downward Spiral at the Department of Justice


Monday, Jul. 30, 2007

2007 has not exactly been a great year for the U.S. Department of Justice (DOJ) or for Attorney General Alberto Gonzales. DOJ's problems include the ongoing controversy over nine U.S. Attorneys' dismissal and the departure of many upper-echelon DOJ officials partly because of that dispute. But they don't stop here: There is also the continuing controversy over the so-called Terrorist Surveillance Program and related initiatives, such as the misuse of national security letters. Moreover, there have been longstanding fights with Congress that involve many DOJ programs' overpoliticization, and implicate the Attorney General's candor. These developments have conspired to erode professionalism, morale and effectiveness at the DOJ.

If remedial actions are not instituted soon, the Department's downward spiral will continue and adversely affect DOJ, the justice system, and national law enforcement.

The U.S. Attorney Dispute: Recent Developments

Of all these problems within DOJ, the U.S. Attorney dispute has probably been most debilitating for both the lawyers who work in the Washington, D.C. Justice Department headquarters and the thousands of attorneys who labor in the 93 U.S. Attorney Offices across the country.

Since February 6, when Deputy Attorney General Paul McNulty testified that many of the U.S. Attorneys who resigned were dismissed for "performance-related reasons," the DOJ and Gonzales have been embroiled in controversy. That controversy has only increased, as more developments have unfolded.

For example, Gonzales and McNulty have testified that they were essentially "out of the loop" on U.S. Attorney firings. Kyle Sampson, Gonzales's ex-Chief of Staff, admitted that he compiled a list of U.S. Attorneys who might be dismissed but did not clarify who had ultimate responsibility for the resignations. Monica Goodling, DOJ's White House liaison, testified that she "crossed the lines" by hiring Justice Department career lawyers and Assistant U.S. Attorneys for political reasons, instead of professional qualifications.

Moreover, there seemed to be conflicts between some of this testimony and that offered by Gonzales, and apparent contradictions with some of the Attorney General's public remarks.

It is, thus, not surprising that on Tuesday, July 24, when Gonzales testified before the Senate Judiciary Committee, the chair and the ranking minority member essentially accused him of not telling the truth and stated that the Attorney General lacked credibility. The ranking member even suggested that a special prosecutor be named to help with possible contempt of Congress charges.

Indeed, on Thursday, July 26, four Democratic senators urged the appointment of an independent counsel to investigate whether Gonzales had committed perjury when testifying. The same day, FBI Director Robert Mueller's testimony appeared to contradict that of the Attorney General, and the Senate Judiciary Committee subpoenaed Karl Rove's testimony.

The Effect of the U.S. Attorney Scandal and Other Issues on DOJ and U.S. Attorney's Offices

Turnover has driven the upheaval. Gonzales is one of the few high-level officials who remain at DOJ. McNulty is expected to leave this week, while Sampson and Goodling departed months ago.

Meanwhile, some assistant attorney general slots have long had no permanent appointees, and the position of Associate Attorney General, the number three officer, has been vacant for over a year. On June 22, William Mercer, the nominee for that post, withdrew after holding an acting appointment for ten months, and Michael Elston, McNulty's Chief of Staff, left.

Around the nation, 24 of the 93 U.S. Attorneys now serve in acting or interim capacities, while there are nominees for only six vacancies. This difficulty was compounded when President George W. Bush recently signed a law that returns to federal judges the power to appoint interim U.S. Attorneys after openings exist for four months.

The actions recounted here, alone and together, have undercut professionalism, morale and efficacy in the day-to-day functioning at DOJ headquarters, and in the 93 U.S. Attorney Offices. Career lawyers, U.S. Attorneys, Assistant U.S. Attorneys and outside, independent observers of DOJ believe that it lacks these attributes, as well as direction, management, and organization. One telling measure of the dire straits is that former and even present staff have publicly expressed concerns. For example, Daniel Metcalfe, an attorney who retired from DOJ this winter and opened his government service in the Nixon Administration, stated: "When you have an attorney general with [Gonzales's] personal integrity and credibility so repeatedly reduced to shreds," that is just antithetical to the department's very nature. John Koppel, who has worked at DOJ for a quarter century, similarly wrote that it had been "thoroughly politicized in a manner that is inappropriate, unethical and indeed unlawful." The Senate Judiciary Committee chair and ranking GOP member reiterated on Tuesday that DOJ appeared to be in disarray and even dysfunctional.

How DOJ Can and Should Be Turned Around, and Order and Morale Restored

Action should be promptly taken to rectify or ameliorate these circumstances. Many observers, including GOP senators, have urged that Gonzales resign. His leaving would alone give line attorneys a morale boost, by signaling that change is in the offing.

If the Attorney General departs, President Bush must name a lawyer with impeccable qualifications to replace Gonzales. Examples include Paul Clement, the current Solicitor General; Ted Olson, his predecessor; and Larry Thompson and James Comey, the first-term Deputy Attorneys General.

More generally, the high-ranking positions at DOJ must be filled with attorneys who know how the Department operates in the areas of professionalism, policy, politics and daily work. These persons should have broad, deep DOJ experience, preferably from working at Main Justice and U.S. Attorney Offices. They also must have no connection to the U.S. Attorney firings. Examples of excellent candidates are Craig Morford, whom Gonzales suggested for Deputy Attorney General on July 18, and Chuck Rosenberg, the U.S. Attorney for the Eastern District of Virginia, who was Counselor to then-Attorney General John Ashcroft, Counsel to Mueller, and Chief of Staff for then-Deputy Attorney General Comey. (I discussed Rosenberg as a candidate in detail in a prior column.)

The difficulties that are currently plaguing the Justice Department must be expeditiously addressed. It may be preferable for the Attorney General to resign. However, if Gonzales remains, he must rapidly surround himself with expert career professionals who can help restore the professionalism, morale, and rigor which have long been DOJ hallmarks.

Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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