Posted January 11, 2008 by J. Gerald Hebert

Is DOJ Still Steeped in Politics?

Some of the details by some in the Bush Administration to politicize the Justice Department’s law enforcement efforts are now well known, thanks in large measure to Senate and House Judiciary hearings held last year.  Those hearings should continue in the year ahead for a couple of reasons.  First, we have yet to learn fully about misconduct and possible crimes committed by DOJ officials and White House personnel during this period.  Second, the current election cycle presents yet another opportunity for DOJ partisans to use law enforcement machinery to affect the outcome of this year’s elections.  So there is some urgency to get to the bottom of all this and ensure that the problem is corrected going forward. 

Now some will claim that the purging of a number of appointees and appointee hires last year has eliminated all the concerns about partisanship at DOJ and there is no longer a need to worry.  After all, Alberto Gonzales, Karl Rove, Harriet Miers, Monica Goodling, Kyle Sampson, Brad Schlozman, and Hans von Spakovsky have all left Government.  Presumably, they no longer pose a threat.  But the politicization of DOJ runs both broad and deep.  As a former DOJ prosecutor, I know it will take more than a new Attorney General and the resignations of a few bad apples to restore DOJ’s integrity, credibility, and reputation for evenhanded, nonpartisan law enforcement.  What can or should happen? 

Perhaps the Senate or House will conduct oversight hearings this year, as they should, to determine the steps that DOJ officials are taking this year to insure that the Justice Department will not use its vast law enforcement resources to play politics again this year.  If the answer is that nothing has changed from 2004, then that’s a source for great concern.  That seems particularly important not only because it is an election year, but because DOJ has been investigating itself over this matter for many months now and has yet to tell Congress what it found and or even when the investigation will finish.  There is also reason to wonder if the Inspector General at DOJ or the Office of Professional Responsibility will be blocked from obtaining all of the facts.  Recall that in 2006 the Justice Department’s Office of Professional Responsibility was foiled in its efforts to investigate the Bush Administration’s domestic eavesdropping program when investigators were denied security clearances to do their work.  This points up the need for oversight hearings.

For those who wonder why I remain concerned about politicization at DOJ, let me give you some recent examples of DOJ actions that suggest partisan politics are alive and well at DOJ. 

Consider the Indiana voter ID case heard earlier this week by the Supreme Court.  The case is steeped in politics, with Democrats claiming the law was enacted by Republicans to deprive certain voters of the right to vote.  Who are those certain voters?  In the words of the only judge (of four) to rule on the Indiana voter ID law who was appointed by a Democratic president, those voters “skew Democratic.”  The Indiana voter ID law challenged in the case was voted into law by a Republican controlled Legislature and signed into law by a Republican Governor.  Not a single Democratic legislator supported it.  The issue of voter ID is seen today as one of the most politically polarizing issues in the election law arena. 

Indeed, in the handful of states that have enacted voter ID laws since the infamous Bush v. Gore decision, all have been states where Republicans control the Legislature and have been enacted largely along party lines.  In Texas last year, where Republicans control the Legislature, a voter ID law only lost because one Democratic state senator, Senator Mario Gallegos, risked his life (he had undergone a liver transplant) and defied his doctor’s orders to return home, instead staying on the senate floor in a hospital bed to help block a vote on the measure.   

Now given the politically polarizing issue of voter ID laws, I find it troubling that DOJ made a decision to participate in the case.  But DOJ not only filed a brief in the case, they asked to participate in oral argument and even had their top gun, Solicitor General Paul Clement, present the argument.  It also struck me as unusual that among the signatories to the Government’s brief, there was no career attorney from the Division’s Appellate Section listed.  That is a procedural departure from the norm (particularly when an attorney from the Voting Section is listed as was the case here), and suggests to me that an attorney in that section may have asked to have her/his name removed.  

I am not alone in raising this concern of partisanship.  As law professor Mike Pitts (and a former DOJ attorney) recently noted:

“Speaking of partisanship, let’s take a minute to consider the decision of the Bush Administration’s Justice Department to file an amicus brief in support of Indiana’s law. Without a doubt, the Justice Department brings a certain cache to the table and has some interest in the Indiana litigation at least so far as the litigation potentially implicates the Help America Vote Act.  The Justice Department’s amicus brief also brings a unique perspective to the fore—arguing Indiana’s law should be sustained on a facial challenge but might still be unconstitutional as applied—an argument grounded in the apparent trend of the Supreme Court to prefer as applied rather than facial constitutional challenges.  Even so, one has to question the judgment of the Justice Department in getting involved here. After all, rightly or wrongly, the Department has been accused of partisan enforcement of election law for several years running now—whether it be the decision to approve Texas’ re-redistricting of congressional seats or the U.S. Attorney’s scandal or some of the decisions involving enforcement of the Help America Vote Act. So perhaps a Bush Administration Justice Department led by a newly-minted Attorney General who seems intent on resuscitating the Department’s reputation should have sat this one out rather than take another position favorable to the Republican Party on an issue that generates so much partisan heat.”

I agree with Mike Pitts.  For me personally, DOJ’s participation was a painful reminder of DOJ’s amicus participation in the Texas congressional re-redistricting case in 2006 where DOJ, which in 2003 had approved the plan for political reasons over the unanimous recommendation of more than a half dozen career attorneys in the Voting Section, filed an amicus brief defending Tom DeLay’s re-redistricting plan against a Voting Rights Act challenge and participated in oral argument.   That case was similarly steeped in politics and given the unclean hands that DOJ brought to the case, its decision to participate was questionable.  It is clear to me that the current Solicitor General’s office will serve as the de facto legal counsel to the GOP in any election law case that reaches the Supreme Court and has partisan implications.

But there’s more evidence that partisanship continues to play a significant role in how DOJ conducts its business.  Consider, for example, that the current U.S. Attorney in New Jersey (Christopher Christie) is the subject of a DOJ inquiry into his awarding of a no public notice and no-bid contract to former Attorney General John Ashcroft as The New York Times reported earlier this week.  The deal was pretty sweet, worth at least $28 million over 18 months![1]  Nor is this the first time Christie has awarded no-bid, sweetheart deals to Republican friends.  The Times reported that Christie “directed similar contracts in settlements with other medical-supply companies to two other former Justice Department colleagues - David N. Kelley, the former United States attorney in Manhattan, and Debra Wong Yang, his counterpart in Los Angeles - and to David Samson, the former Republican attorney general in New Jersey.”  These are not two bit players nor penny-ante settlements. 

Yang was US Attorney in Los Angeles until October 2006.  There is some indication that Yang was on the verge of being pushed out of her US Attorney job by former White House lawyer Harriet Miers and former DOJ official Kyle Sampson.  The record before the Senate shows Ms. Miers and Mr. Sampson were exchanging e-mails about dismissing her in mid-September 2006, and she announced her departure in October.  It was speculated by some that Yang’s corruption investigation of Republican Congressman Jerry Lewis was the reason Ms. Miers was pressing for her removal. 

Lewis apparently remains the subject of a public corruption investigation, but Yang received $1.5 million from the firm defending Rep. Lewis, Gibson Dunn, to leave the US Attorneys and join that same law firm.  At Gibson Dunn, Yang was hired to be co-leader of the Crisis Management Practice Group with Theodore Olson, who was President Bush’s solicitor general and his Supreme Court lawyer in Bush v. Gore.  Did Ms. Yang know or suspect that she might lose her job, and jump ship to avoid being fired?  Did Gibson Dunn offer Ms. Yang a rich financial package to move her out and knock the Lewis investigation off its tracks?  What effect did Ms. Yang’s departure have on the investigation?  Perhaps the Senate or House Judiciary Committees will eventually find out.

If Attorney General Mukasey is going to do more than give mere lip service to his confirmation hearing promise to eliminate partisanship from DOJ decisionmaking, then investigating these no bid contracts offered by Mr. Christie would be a good place to start.  A Department of Justice spokesperson states “that while there had been no accusations of wrongdoing on the part of Mr. Christie or Mr. Ashcroft, aides to Attorney General Michael B. Mukasey were concerned about the appearance of favoritism.”   

Given his promises to run a clean and even handed law enforcement agency, Mr. Mukasey should be more than concerned.  He needs to make it clear that he will investigate matters like this and fully disclose the results of the investigation to the public.  He needs to establish a timetable for such investigations, so they don’t disappear into the black hole at Justice where so many other public corruption investigations have fallen.  Remember Tom DeLay and his involvement with convicted felon Jack Abramoff?  Even with Abramoff singing to federal prosecutors for months, it doesn’t appear DOJ is any closer to prosecuting DeLay or any of his cronies anymore than they were a year ago. 

What is happening at DOJ?  Public corruption cases are seen by the public, correctly in my view, as indicators of whether DOJ is going to enforce the law wherever the evidence leads.  It’s the one area where the Attorney General, by pursuing cases vigorously, can be most influential in restoring integrity to Justice.  And in that same vein, Mr. Mukasey needs to give priority to matters where the actions of Departmental attorneys suggest bias, as they surely do here.  If we don’t see action by the Attorney General or the Justice Department soon in these areas, then there will be little reason to believe that much has changed at Justice.  More importantly for those of us in the election law field, it does not bode well for the election year decisions that will be made at DOJ. 

[1] See  Ashcroft Deal Brings Scrutiny in Justice Department,  Philip Shenon, The New York Times, Thursday, January 10, 2008.