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DOJ, Partisan Campaigner


I ended my career at the Justice Department as a political appointee under the Bush administration.  Before then, I had been an Assistant US Attorney under administrations of both parties.

In my roles both as career prosecutor and political appointee, I took it for granted, and my colleagues took it for granted, that we were part of the government, not part of a campaign.  If I had made partisan points to the press, I would have expected to get the axe, and I would have given the axe to any subordinate who similarly failed to understand the difference between governance and politics.  This understanding is crucial throughout the executive branch, but nowhere is it more imperative than in the Justice Department.  The idea, much less the reality, that partisanship guides the agency responsible for law enforcement is appalling.  It stains a legacy generations worked to build.  And its implications for freedom are frightening. 

My how times have changed.  From the Attorney General on down, the message now is that it's OK to bash the opposing party, and to do so in terms that implicity question the opposition's patriotism. 

Fifty years ago, this had a name.  The name was "McCarthyism."

Out yesterday was this report, http://www.foxnews.com/politics/2010/03/17/justice-department-accuses-republicans-weak-terrorism/.  The title is simply startling:  "Justice Department Accuses Republicans of Being Weak on Terrorism." 

I can only imagine the furor that would have ensued had John Ashcroft's Justice Department accused the Democrats of being "weak on terrorism."  And I would have joined the furor, since an attack by the government's chief law enforcement agency on the opposing political party, as such, is so far outside the traditions of responsible government as to boggle the mind.

It is one thing for individual officers of the Department, up to and including the Attorney General, sharply to disagree with members of the opposing party.  This happens all the time, and it happened with Eric Holder's appearance this week before the House Judiciary Committee, in which Holder defended, as being a "strong" response to terrorism, the prospect of civilian trials.  But it is something else for officers of the Department to go on deep background to hiss to the press messages like this, which the report recounts towards the end:

As for Holder's comments Tuesday trying to paint Republicans as hindering counterterrorism efforts, a Justice Department spokesman said Holder "very clearly wanted to make a point that the proposals we've seen would harm our national security."
"When you have the last nominee for president of the Republican Party and the Republican leader in the Senate both saying that no terrorist should ever be tried in the federal court system, it's clear that that party has made a political decision to remove a counterterrorism tool that is important to keeping our country safe, and by doing that they would weaken our national security," a Justice Department official told Fox News, asking to remain anonymous so as not to jeopardize relations with Republicans in Congress.

I think it was Mark Twain who said that patriotism is the last refuge of a scoundrel.  For the Department of Justice to seek such refuge (and do so quite implausibly  --  but more of that later) says a great deal, none of it good.  The worst of it, though, was not the breast-beating invocation of patriotism but the explicilty political criticism of the administration's opponents.  That would be bad enough coming from the Department of Health and Human Services.  Coming from the Department of Justice, it is worse than merely worrisome.


First of all, nothing that Holder says about national security can be taken seriously. After his "we won't take bin Laden alive" nonsense (and nonsense which was bluntly contradicted by General McCrystal), he cannot be regarded as serious. Moreover, Eric Holder is hardly a paragon of integrity, given his actions in the Marc Rich case and his subsequent dissembling over it. His assessments of what is good for our national security cannot be taken at face value because of his obvious lack of expertise and his casual attitude towards ethics and truthfulness.

Second of all, these DOJ people must be out of their minds. When McCain and others say that bin Laden shouldn't be tried in a civilian court, they don't mean that there are no conceivable scenarios under which he (or any of his cohorts) would be so tried. If some other government captures bin Laden and insists on a civilian trial, we will likely have to go along with it. Or maybe we don't compromise intel, and the guy's a minor player, so we try him simply because we won't have to worry about the ACLU whining. And even if John McCain overstates his case--it's not like he was comparing bin Laden to Charles Manson, as if that somehow answered the point that Holder wants to treat him as a common criminal.

"To those who scare peace loving people with phantoms of lost liberty, my message is this: your tactics aid terrorists for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends."
John Ashcroft 12/7/2001

To claim that this kind of partisanship in the AG's Office is something new or coming only from one party ignores history.

Cal Prosecutor, I think that Bill makes a distinction between the AG himself and enlisting the attorneys in DOJ in the fight. I believe that Ashcroft was right about things in December of 2001 (remember, everyone thought that 9/11 was going to be followed by more attacks). A lot of very disingenuous comments were made, and that stuff did give ammunition to those who oppose America.

I do accept your point that perhaps the AG shouldn't be so political. I don't necessarily agree, but I certainly accept that it's a fair point.

Cal. Prosecutor --

A couple of things. First, note that Ashcroft did not call out the opposing PARTY. Second and relatedly, there was a good reason for that, beyond the (good enough) reason of keeping DOJ officially non-partisan: That the opposing party was at the time (three months past 9-11) almost fully on board with a strong response to the attacks. The ones "scar[ing] peace loving people with phantoms of lost liberty" were radical Leftists, not the Democratic Congressional delegation. So there was no reason to call out the Democrats even if Ashcroft were tempermentally inclined to do so, which he was not. Indeed, even now, with the Democrats in the majority, Bush's signature anti-terror legislation, the Patriot Act, was re-authorized virtually intact by a large bi-partisan majority. It could not even have been brought to the floor unless the Democrats were supportive.

Finally, even putting all that to one side, you avoid the thrust of my post. The main point is that it is at best unbecoming, and at worst frightening, for the government's principal law enforcement agency to be making AN EXPLICITLY PARTISAN attack on the opposition. That might happen in banana republics; historically, it almost never happens here, and shouldn't.

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