With Joe Biden’s status as president-elect secure and his appointment of an attorney general imminent, restoring the proper functioning of our Department of Justice and earning public trust in our rule of law are now front and center. Those challenges are no less urgent or important than addressing the COVID-19 crisis, strengthening our economy, or reestablishing our leadership on the world stage.
But after four years of a president who openly aspires to autocracy, and two years of an attorney general who used his many official powers to advance that objective and undermine the core tenet of our legal system that no person is above the law, it is easy to find oneself wondering where in the world to begin. And thoughtful analyses addressing possible statutory and structural changes, aimed at foiling such malefactors from wreaking havoc in the future, have only made the task seem more overwhelming.
Return to playbook of last 50 years
The Biden administration’s immediate task is putting on the field a DOJ that can command public trust because it obviously deserves it. The happy news is that is a no-brainer, not a mission impossible. Yes, long-term serious trouble lies ahead if America does not in coming years reach a broad-based consensus to reject profoundly dishonest leaders who won’t honor a legal system that does not tolerate special treatment for the few.
But the short term urgent task of restoring the proper functioning of the Department of Justice, and securing trust in the rule of law by those alarmed by the events of the last few years, is much less daunting. That is primarily because most of what is needed right now is simply to go back to the playbook of the last half century — procedures, traditions and norms inspired by Edward Levi and Griffin Bell following Watergate, and cemented by generations of leaders and lawyers during ensuing decades.
Essentially it amounts to a U-turn away from the pervasive misconduct of President Donald Trump and Attorney General William Barr, and a return to the fundamental principles that have long guided the department. What we need now is for the new attorney general, with the vocal support of the president-elect, to offer the nation an extended teaching moment reaffirming six key norms that this administration has worked so hard to undermine.
►The law applies equally to all people, and no one is above the law, not even the president. The highest priority must be on even-handed treatment of everyone, based on a fair assessment of the facts and the law. Any appearance of influence or use of official authority to advance anyone’s political interests, must be scrupulously avoided.
►Communications between the White House and Justice Department must be guided, as in previous administrations, by a written memorandum or order defining and limiting the types of contacts that are appropriate. White House conduct to influence the handling of criminal cases should be avoided in virtually all cases.
►The DOJ’s greatest assets are the dedicated men and women of its career staff, whose (in Edward Levi’s words) “zeal and determination, and … concern for fairness and impartiality” are indispensable. The career staff function not as unaccountable free agents, but within an established, structured decision making process in which proposed actions are subject to review, often at multiple levels and by both career and political appointees.
Support checks on executive power
►The thoroughness, transparency and regularity of these departmental processes, and the avoidance to the greatest extent possible of inexplicable ad hoc interventions from above to change outcomes, are important attributes of DOJ operations that invite public trust.
►The department must be fully supportive of inspectors general, special counsels and whistleblowers, all of whom can play important roles in unearthing governmental wrongdoing. They are only the enemy of a department that has locked arms with a nefarious president in his quest for unchecked power.
►Finally, the DOJ must respect constitutional checks and balances on executive power, including Congress’s right to refuse appropriation of funds requested by the president (Trump’s end run to finance his border wall is currently before the Supreme Court); the reasonable exercise of congressional oversight powers (not “We’re fighting all the subpoenas,” as Trump said); and the broad power of judicial review over executive branch actions. The conflicts that these checks give rise to must be worked through on the merits of each instance, not denied categorically on the basis of absolute presidential prerogatives.
To any Rip Van Winkle DOJ lawyer lucky enough to have slept through the last four or even two years, this will seem a ho-hum list — nothing new based on decades of practice. But the sentences here all address and correct specific depredations committed by Trump and Barr, including leniency for Trump allies, undermining DOJ professionals and evading oversight. Thus, while surely not exhausting the Biden administration’s ultimate ambitions for the Department of Justice, just doing what we have always done will be doing a great deal.
Donald Ayer served as a U.S. attorney and principal deputy solicitor general in the Reagan administration and as deputy attorney general under George H.W. Bush. Follow him on Twitter: @DonaldAyer6