- - Monday, October 20, 2014

ANALYSIS/OPINION:

Watergate-era misconduct and politicization at the Department of Justice shattered public trust in a once-venerated institution by 1975. The urgent task of restoring Justice fell to Edward H. Levi, a respected former law professor and president of the University of Chicago. Levi’s intellect, integrity and temperament returned the department to its position as America’s most respected federal law enforcement agency.

Cardozo Law professor Edward A. Zelinsky recently urged President Obama to “nominate another Ed Levi” to head the Justice Department but concluded “that nothing comparable to Watergate has transpired in recent years.” Yet, the challenges facing today’s Justice Department are unsettlingly similar to those confronted by then-Attorney General Levi, who died in 2000.

According to a recent Rasmussen poll, just 23 percent of respondents “trust the federal level of the criminal justice system the most.” Public confidence in the attorney general has plummeted. More than half hold a negative view of the Obama-Holder Justice Department. Employee morale has declined. Eric Holder Jr.’s departure presents an opportunity for a new beginning.

The president now plans to nominate Mr. Holder’s successor after the November midterm. In order to reduce the possibility of a partisan and divisive attorney general nomination during the lame-duck session of Congress, Senate Republicans must emphasize that a consensus nominee will promote timely consideration of executive nominations in the next Congress. In addition, House and Senate GOP leaders must emphasize that the president’s attorney general nominee will be viewed as a benchmark for congressional relations in the final years of the Obama presidency. Finally, to ensure the fundamental change Americans expect, confirmation of the next attorney general must be conditioned upon repudiation of the policies that have diminished the department’s public standing.

Speaking of Mr. Holder’s predecessor in 2007, then-Sen. Barack Obama said: “Part of the role of the attorney general is to say to the executive branch, ‘Here are the limits of your power. Here are the things that you can’t do.’ What you get a sense of is an attorney general who saw himself as enabler of the administration, as opposed to somebody who was actually trying to look out for the American people’s interests.”

Mr. Obama’s assessment captures Mr. Holder’s legacy as cogently as his most determined critics. Nobody better reflects the disconnect between the rhetoric and reality of the Obama administration than Mr. Holder. A nominee who upholds Levi’s values would bridge this chasm.

Levi helped restore respect for the rule of law and constitutional government. Mr. Holder’s Justice Department has provided legal cover to undercut both. Mr. Holder has politicized criminal and civil investigations. He has refused to enforce duly enacted federal laws. Overriding objections from career personnel, Mr. Holder directed federal prosecutors to ignore statutorily mandated charging guidelines. He asserted unilateral presidential authority to determine when Congress is in session. He has advocated unprincipled peacetime assertions of executive power that have produced a string of Supreme Court rebukes.

Levi recognized the threat posed by litigating political disagreement. Ignoring advice from five CIA directors, Mr. Holder subjected U.S. intelligence personnel who answered America’s post-Sept. 11 call to additional investigations that only confirmed earlier findings. Disregarding the view of the intelligence community, Mr. Holder supported legislation to limit authority to investigate unauthorized disclosures of national security information. Mr. Holder’s Justice Department provided the pretext for the illegal Taliban “prisoner of war exchange,” and it is committed to emptying the detention facility at Guantanamo Bay without regard to law or reason.

Levi sought to eliminate politicization of the Justice Department. Mr. Holder has ignored the views of U.S. attorneys, career prosecutors and other nonpolitical personnel on trying foreign-based terrorists in federal court, granting serial pardons to convicted felons in lieu of criminal justice reform, and revealing sensitive U.S. cybercapabilities in a case he acknowledged might never be tried.

Levi established investigatory guidelines and sought increased openness and transparency. The only sitting Cabinet member to have been held in contempt of Congress, Mr. Holder defies Congress and the courts by withholding subpoenaed, unprivileged information concerning the botched gun-trafficking scheme that cost the lives of Mexican citizens and that of Border Patrol officer Brian Terry.

Levi emphasized the importance of accountability. Mr. Holder has attempted to shift blame to others. On June 7, 2012, Mr. Holder told a House committee that his predecessor “did far less than what I did” to stop “gun-walking.” Appearing before the Senate Judiciary Committee five days later, Mr. Holder testified that Attorney General Michael B. Mukasey was “briefed on these kinds of tactics in an operation called Wide Receiver and did nothing to stop them — nothing. Three hundred guns, at least, walked in that instance.” However, the Department of Justice’s inspector general “found no basis to conclude that Mukasey had knowledge of Operation Wide Receiver or was informed about the use of ‘walking’ as a tactic employed in ATF investigations.”

Levi recognized the department’s central role in upholding justice across federal agencies. Mr. Holder’s Justice Department has shown scant interest in potential executive misconduct warranting formal investigation. Mr. Obama called the Department of Veterans Affairs scandal “dishonorable” and “disgraceful.” Mr. Holder has announced no plans to criminally investigate “systemic fraud” that may have cost hundreds of veterans their lives.

Mr. Obama claimed sufficient personal knowledge of internal operations at the Internal Revenue Service to conclude that there is not “a smidgeon of corruption” at that agency. Mr. Holder has opposed appointment of a credible and independent investigator to examine admitted political targeting and potential obstruction that have enveloped IRS leaders in a fog of suspected criminality.

When opposing the confirmation of Alberto Gonzales, then-Sen. Obama claimed Mr. Gonzales’ personal relationship with President George W. Bush precluded his impartial exercise of the office of attorney general. When asked about the nature of his relationship with Mr. Obama in April 2013, Mr. Holder replied: “I’m still the president’s wingman, so I’m there with my boy. So we’ll see.”

We have seen. The Justice Department now resembles a legal subsidiary of the White House; the president’s law firm rather than the people’s. Edward H. Levi confronted a similar challenge when arriving at Justice. According to special assistant Jack Fuller, Levi revitalized a broken Justice Department because “he took restoring faith in the legitimacy of government and adherence to the rule of law as his highest priority.”

That must be the unequivocal commitment of Mr. Obama’s nominee to lead the Justice Department. And the express condition upon which Senate confirmation of America’s next attorney general depends. 

Robert N. Tracci served as special assistant U.S. attorney and deputy assistant attorney general in the Department of Justice, and chief legislative counsel for the House Judiciary Committee.

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