As was expected there was a lot of writing and discussion over the weekend about the Attorney General’s decision to appoint a special prosecutor and open a preliminary investigation into certain CIA interrogations. Three elements of this discussion, each of which arose in various forums, routinely ticked me off. So, I figured I’d use the blog for it’s intended purpose; to rant about things that I can’t stand hearing/reading, especially from elected officials, media types, and other commentators who are supposed to know better.
First, is this idea that the Attorney General is some independent actor, which, according to some, justifies his actions because no longer is the Department of Justice a political tool of the White House. This is wrong on so many levels that I don’t even know where to start. The Attorney General and the Department of Justice are not independent of the White House. To the extent that they operate as such it is because the White House has decided that is the way it is going to be. The Attorney General serves at the pleasure of the President, he can be fired at any time for any reason, including doing things that the President does not agree with. The fact that such action may be the “right” thing to do in a given circumstance is not enough to save an AG’s job. Sure, some AG’s and DOJs have operated more independently than others, but that’s a political decision, not a legal requirement. Hence, while I disapproved of many of the decisions by the Bush DOJ, there was nothing illegal or unconstitutional about how they did things. Secret opinions, close connections to the White House Counsel’s office, end runs around the AG, all problematic to be sure, and deeply misguided, in my opinion. None of it, however, was illegal or unconstitutional. Note, my conclusion is limited to the how, not necessarily the what – i.e., many of the opinions of the Bush Office of Legal Counsel were, in my opinion, constitutionally suspect.
In short, at the federal level we do not have an independent law enforcement body. Could we? Sure, we could, but it would require either a congressional statute dramatically changing the composition of the DOJ, or amending the constitution to provide for another federally elected official. Let’s deal with the first option. Congress could, if it wanted to, make the DOJ more politically independent. Congress could, for example, give the AG a fixed term of office, say 15 years. It should be noted that that time wasn’t arbitrarily chosen. Current law gives the Director of the FBI a 10 year term and that position reports to the AG, so naturally you would want the lead position to have a longer tenure of office. In addition, Congress could provide statutory removal protection making it much more difficult for a President to fire an AG. There are many other types of actions that Congress could take to make the AG more independent, but they haven’t been done, therefore, the AG still works for the President and is not an independent actor. Moving to the second option, currently the Constitution calls for only one chief law enforcement officer, the President. Adding a second, would require changing the text via an amendment. In many states, the Attorney General is an elected official, and often is a stepping stone for Governor or higher office. In fact, one can argue that in some states, such as Texas, the Attorney General is more powerful than the Governor, though not perhaps as politically relevant. We could, if we amended the Constitution, have an election for Attorney General, just like at the state level. Such a move would arguably make the AG independent and accountable not to the President, but to directly to the electorate. Of course, you run the risk of having a President and an AG of different political parties, with likely different priorities, values, and goals. This could complicate matters greatly, especially if the AG decides to spend a lot of time and resources investigating the Executive Branch, justly or unjustly, such a division of responsibility will have dramatic consequences.
Which leads directly to my second gripe. Where did the notion come from that the investigation and prosecution of criminals is something other than a political act? All prosecutions are political, at all levels of government. From petty theft all the way up to public corruption, bringing the full force of the government against individuals is always political, pure and simple. The converse is also true. Deciding not to bring criminal actions against persons is also a political act. That’s why prosecutorial discretion is among most powerful weapons that the government has in its law enforcement arsenal. The power not to proceed can often be more effective than proceeding with criminal cases. It was political when the Bush Administration decided to prosecute Scotter Libby, and when it decided not to pursue cases against the CIA. Similarly, it is political now that the Obama Administration has decided not to pursue the allegations of voter intimidation in PA, and has decided to look into the CIA. This always cuts both ways. Contrary to popular belief, not all people who the government knows violated the law are criminally prosecuted. Some are “flipped” and become informants against higher ranking more powerful criminals, others are simply ignored as their crimes (simple possession of narcotics) are deemed not worth the resources required to pursue. Either way, it’s a political decision, pretending anything else is naïve and foolish.
So, if the DOJ is not independent and prosecution is always political, it stands to reason that the recent decisions by the Attorney General are partisan. No, not necessarily. Let us not confuse political decisions with partisan decisions. The two things can and should be separate. One does not want a DOJ that only goes after Republicans or only pursues certain types of criminals. That said, there is always priority setting and that can take on partisan overtones. For example, the Bush DOJ placed a high priority on political corruption cases and, of course, terrorism related probes. To their credit, on the political corruption front, they nabbed both Republicans and Democrats in their probes. That said, however, the persons caught were generally outside the Executive Branch, focusing primarily on Congress and State governments for their biggest prosecutions. Dedicating resources this way of course meant fewer prosecutions in other areas of the law. For the Bush DOJ this meant virtually no antitrust enforcement and fewer major drug cases. It not yet known what the full priorities of the Obama DOJ will be, but it sure looks like they are willing to go in a different direction, including being willing to prosecute people inside the Executive Branch, for legal violations.
Finally, while I’m ranting, I want to say a brief bit about “victim’s rights.” Saying that they don’t have any goes too far, but to suggest that prosecutors ought to take certain actions for the best interest of the victim gives them far too much influence on the process. Ever wonder why criminal cases are always called “the people of the State of X” v. Defendant. Or, in the case of the feds, the United States v. Defendant. It’s because the prosecutor doesn’t represent the victim, but rather the “people” as a collective whole. Yes, a criminal has done wrong via the victim(s) of their crimes, but they have violated the laws of the state or country and it is the later transgression for which they are being punished. Phrased another way, prosecutors vindicate societies rights, not the victims. I know that sound harsh, but that is the way it is, has always been, and, in my opinion, always should be. In many instances, vindicating society for the criminal act will also provide “justice” to the aggrieved victim, but other times when society requires a plea bargain, lesser sentence, or even the rare pass for “political” reasons, victims need not get in the way with complaints, press conferences, and other demands on the prosecutor. The prosecutor needs to be sensitive to the needs of the victim, of course, but he/she also has a duty to the “people,” which may be different than the needs of the victim or their family. We can be compassionate, respectful, and demand justice, but to suggest that things be done to vindicate the “victim’s” rights, drives me nuts. Prosecutors should pursue truth and justice to the fullest extent that the law and available resources permit. It’s a hard enough job without tacking on the grief, anguish, and frequent need for vengeance that a victim might add to the equation. Dispassionate, long term justice is always best, and victims tend to be narrowly focused and shortsighted. Let’s let the professionals do their jobs without adding barriers and requirements that they factor into consideration things that are ultimately not helpful to the goal.
End of rant. We have the best justice system in the world and it is not independent, but is highly political, and shouldn’t as a general rule take into account the “rights” of the victims. Given all that and it’s other imperfections, I still wouldn’t trade it for any other system, would you?