With Attorney General Jeff Sessions’ departure from the Department of Justice and President Donald Trump’s appointment of a political loyalist, Matthew Whitaker, as acting attorney general, it is time for the nation to recommit to the idea that the law applies equally to everyone.
Many Americans are rightfully concerned about the future integrity of special counsel Robert Mueller’s investigation into possible links between Trump’s presidential campaign and Russia’s effort to interfere in the 2016 presidential election. Whitaker, meanwhile, has been described as the West Wing’s “eyes and ears” inside the DOJ. He becomes Mueller’s supervisor and de facto gatekeeper to any specific lines of inquiry that involve the president, his finances or his close associates.
If you think there’s no risk of a political appointee like Whitaker interfering in the investigation for partisan political or personal reasons, think again. I know from experience what happens when politics interferes with how federal investigations are conducted.
Almost 12 years ago, eight of my colleagues and I were fired from our jobs as U.S. attorneys as part of an effort by senior officials in President George W. Bush’s administration to punish prosecutors for their decisions in politically sensitive cases.
In my particular case, it was because powerful Republicans in Congress and the White House believed I had not done my duty as a Republican to bring politically advantageous criminal charges against Democrats shortly before the 2006 midterm elections. They further criticized me for not filing alleged voter fraud cases that I did not authorize due to lack of provability.
At first, the DOJ tried to claim that my colleagues and I were removed for “underperformance.” But the agency’s independent watchdog soon uncovered evidence that we were fired for the most partisan of reasons and were not properly insulated from politics. Another investigation at the time showed that political appointees in the department used political affiliation as a factor in their hiring decisions of career prosecutors (a practice prohibited by law).
The scandal resulted in the resignations of several senior officials, including former Attorney General Alberto Gonzales. It also caused enormous damage to the credibility of the Department of Justice and threatened the fundamental principle that justice has to be blind to politics for our system of “equal justice under the law” to work. Fortunately, then-Attorney General Michael Mukasey wrote a letter of apology in 2008 to those of us who had been wrongfully terminated.
While Congress considered multiple legal remedies in response to the scandal and voted to overturn a 2006 provision in the USA Patriot Act allowing the attorney general to appoint indefinite interim U.S. attorneys, no significant new laws to combat political interference in prosecutorial decisions were adopted.
Recent events show such reforms are long overdue. When the president is the subject of a law enforcement matter and his most senior law enforcement appointee is presiding over that matter, there is heightened cause for concern. In this scenario, Americans deserve to be confident that the nation’s top officials are upholding their duty to fairly and impartially administer justice rather than protecting their own interests. And Americans should believe that prosecutorial and investigatory decisions are made on legal, not political, grounds.
That’s why — as part of the bipartisan National Task Force on Rule of Law and Democracy — my colleagues and I have proposed that Congress immediately pass the Special Counsel Independence and Integrity Act, bipartisan legislation intended to protect the special counsel from improper removal that was voted favorably out of the Senate Judiciary Committee in April.
The legislation requires that the special counsel may be removed only for cause, and it establishes judicial review of any for-cause determination.
Second, Congress should empower agency inspectors general to investigate improper political interference into law enforcement matters. Some might argue that inspectors general in the executive branch already have this power — as I assume the DOJ inspector general who investigated my firing might — but we should make this authority clear for such an important and sensitive function. Congress also should pass legislation requiring the executive branch to articulate clear standards for and report on how White House officials interact with law enforcement.
Following the abuses of the Watergate era, every White House has adopted a “limited contacts” policy to limit who from the White House and who from the Department of Justice and other enforcement agencies may discuss ongoing investigations and cases. The policies are meant to guard against overt direction from the White House, or the use of investigative agencies to punish political foes. They also protect against the inadvertent pressure or bias that may result from the White House’s inquiry into a specific matter.
Mandating that these policies be adopted and made public will increase transparency and bolster accountability. It’s urgent that we demand our government officials act to uphold the rule of law and our democratic system of governance. My fellow task force members and I offer a road map for shoring up our democracy — not just for the current administration but for the next one and the one after that. I know firsthand that even founding principles can’t be taken for granted.
David C. Iglesias was the U.S. attorney for the district of New Mexico from 2001-07 and is a member of the National Task Force on Rule of Law and Democracy at the Brennan Center for Justice at the New York University School of Law. He is the director of the Wheaton College Center for Faith, Politics and Economics and is an associate professor of politics and laws.
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November 12, 2018 at 08:18AM