Why the DOJ corruption story matters

[Lanya]

The Political Corruption of the Prosecutorial Function

BY    Scott Horton
PUBLISHED    April 20, 2007


In the period 1933-35, the conservative German legal theorist Carl Schmitt prepared a road map for the destruction of the liberal democratic constitution of Weimar Germany and the insertion in its place of an authoritarian dictatorship.
The cornerstone of the Schmitt plan involved the restructuring of the legal profession, the law courts and the prosecutorial service. (I discuss this process in greater detail elsewhere.) A key element in the Schmitt plan was the political subordination of the prosecutorial service. Any notion of professional autonomy and independence was to be destroyed, and the prosecutor was to recognize that he was a tool of the Executive, doing the bidding of the Executive. In short order the persecution of the Executive's political and social enemies (based on political and social profiling) was the order of the day, and persons close to the center of power were shielded from any prosecutorial inquiry. The rise of a one-party totalitarian state was accomplished in a manner of only a couple of years. And the subordination of the prosecutors – or to use the German term, Gleichschaltung – was a key element in its ascendancy.

It's important not to view the current struggle over the cashiering of U.S. attorneys as a clash of personalities or as a simple matter of professional incompetence (though I would not deny the presence of both these factors). At its core lies a dark tale of the politicization of the prosecutorial service for partisan political objectives. The “smoking gun,” as I previously indicated, comes in a study which shows that under Gonzales, federal prosecutors, exercising discretion highly directed from above, were seven times more likely to indict Democrats than Republicans. This came at a period in time when Democrats were at a political low ebb and therefore rarely had access to the levers of power associated with corruption. But the data shows the clear force of politicization.

Now with the testimony of Alberto Gonzales yesterday, a second “smoking gun” emerged. It is put on the table by Senator Whitehouse, a career prosecutor – and it is a 10,000% increase in the number of political figures in the White House suddenly authorized to meddle in prosecutorial matters. I have been waiting to write about this until a transcript was available, because the exact language is important:

    WHITEHOUSE: Can we also agree that one of the institutions of government that the Department of Justice needs to be independent from, in the enforcement of the laws is the White House?

    GONZALES: No question about it, Senator. If you're talking about prosecuting someone in the White House, yes, we should be independent from them when we're making those kind of decisions.

    WHITEHOUSE: And, indeed, over long history there have been concerns about influence from the White House to the Department of Justice, and people, indeed members of this committee, have expressed concern about the White House-Justice connection over many years. Is that not also correct?

    GONZALES: I think that's a legitimate concern. I think that's very important. I think it's one of the reasons, for example, that Attorney General Ashcroft recused himself in connection with the Plame investigation.

    WHITEHOUSE: The documents that I have given you are two letters. One is from Attorney General Reno to Lloyd Cutler, the special counsel of the president, dated September 29th, 1994. It lays out the policy for contacts between the White House and the Department of Justice in the Clinton administration.

    . . .

    And what it does — the language is behind me — it says that, with regard to initial contacts involving criminal or civil matters, they should only involve the White House counsel or deputy counsel, or the president or vice president, and the attorney general or deputy or associate attorney general, period.

    The more recent memorandum, the other document that you have in front of you is from April 15th, 2002. It represents the policy of the Bush administration regarding White House-Department of Justice contacts.

    And there, in the highlighted part on the front, it says that these contacts regarding pending criminal investigations and criminal cases should take place only between the office of the deputy attorney general and the office of the counsel to the president.

    And then, if you flip back to the very last page, there's sort of an exemption paragraph that exempts further the president, the vice president, the counsel to the president, national security and Homeland Security officials, staff members of the office of the attorney general as so designated, and staff of the office of the president, the office of the vice president, the office of the counsel to the president, the National Security Council and the office of Homeland Security.

    So I asked my staff to take a look at what the difference was between those two in effect, and if you could.

    WHITEHOUSE: 417 folks in the White House who are eligible to have these contacts and . . .

    WHITEHOUSE: About 30-some in the Department of Justice.

Two things of consequence here: First, Gonzales has opened the door for virtually the entire political staff at the White House to meddle in prosecutions. Second, Gonzales doesn't see anything wrong with this. The only restriction he sees is on members of the White House staff being involved in prosecutions of the White House staff. This is a powerful point. It shows that Gonzales doesn't understand that political manipulation of prosecutions is an issue. Like Carl Schmitt, he things this is just the way things should be. The Executive should exercise his discretion. The prosecutor is merely another manifestation of the Execution. The only limitation he would impose is a straight-on conflict of interest in which a member of the White House staff is himself a target (in which case a special prosecutor would likely be involved, eliminating the issue).

This change is further powerful evidence that the politicization has already occurred, and that the first “smoking gun” merely reflects how it has worked its way out on the ground.

It's now critical that each and every involvement of White House personnel in pending prosecutions be examined and questioned, and that this process be brought to an immediate stop.

http://www.harpers.org/archive/2007/04/horton-20070420xovi

[BT]

So when democrat administrations prosecute more vigorously environmental cases for example that would be wrong?

Would that make them Nazi's?

[sirs]

So when democrat administrations prosecute more vigorously environmental cases for example that would be wrong?  Would that make them Nazi's?

Naaaa, I think in Lanya's world, only those names that have an "R" after them can be deemed nazis, with the attempt to connect the 2 parties.......that and want women to die of cancer of course.  Dems always have the apparent prerequisate virture, of never having done anything wrong, when they ran the various branches of governement.  so, they're always simply doing the will of the people.

[Lanya]

BT, I don't get your reasoning here.

Are you saying that by prosecuting environmental cases, that is corrupting our system of justice?
Surely there are some felons to be found, somewhere or other in the business world, who are Democrats?   And if there are more Republicans, should we NOT prosecute them cause that wouldn't be very fair and balanced of us?

This article should make us think. It's a lesson in history.  It is a cautionary article.   

[BT]

Are you saying that by prosecuting environmental cases, that is corrupting our system of justice?

No but wouldn't you expect a dem administration to be more vigorous in prosecuting environmental issues? And if they were more vigorous would that also mean that they were politicizing the justice department? The same charge you apply to the GOP, because voter fraud is a priority with them.

One of the reasons parties change seats is because voters want emphasis placed on certain issues over others.

Why do you think they contribute billions to the parties?

I think if you ponder this for awhile you might begin to realize you are being unfair to the GOP on this issue. IE your outrage isn't thought through to its logical conclusion.

[Lanya]

I don't follow your logic.  If laws are broken, any administration's DOJ should prosecute.  D or R shouldn't matter.  Are you saying the present admin. is a bunch of scofflaws, who let environmental laws be broken under their noses and do nothing about it?  Again, I fail to see how this ties in to corruption in the DOJ.  Unless you're trying to prove the present administration has already corrupted the DOJ?

[sirs]

Lanya, please tell us you see the point Bt is making.  Or are your blinders that thick?  It would seem that to you the GOP IS largely another nazi party.  Any actions they take has to be sinister, diabolical, corrupt, evil even.  And you search far and wide for op-eds to reinforce that made up predispostion of just how evil Bush & the GOP are supposed to be.  Where as when Dems do precisely the same thing, well, their actions are apparently pure, justified, & completely reasonable.

You do realize there's a word in the dictionary that defines that very mindset

[domer]

Let's bury this sucker. The only impropriety in the US Attorney firings, if any, lay in the motivations of DOJ brass, in this way: if they intended to interfere with existing litigation or investigations (by removing the ones guiding those matters), it would, to my mind, be akin to obstruction of justice. That's serious, because the USA's must have an appreciable degree of independence, mimicking the slogan of the New York Times: "without fear or favor." Beyond this clearly improper interference, if it exists, and based largely on the aforementioned need for independence, USA's must have discretion correlative to their positions. Yet, once we stray beyond actual interference in existing or pending cases, or "corrupt" forward-looking change to policy or emphasis, the "discretionary" more quickly yields to DOJ direction. I don't know the law precisely on a USA's ambits of authority in exercising this necessary-but-more-readily-modified discretion, but I'm not aware of a statutory mandate requiring certain cases (or all cases) to be pursued. In this area of discretion, politics does play a role, both in terms of public pressure but also in terms of "guidance" from "home office." If this vagueness wasn't actually designed into the system, its recognition after a while fully comports with our political system, in my view. Also, there is more of an outcry (or more of a legal mandate) when serious crimes are left unprosecuted than when many civil law enforcement actions are downplayed or ignored. The discretion mentioned before (and there's no more definite way to put it) is exercised "artfully" by the USA, DOJ, Congressional oversight and public scrutiny.

[BT]

I don't follow your logic.  If laws are broken, any administration's DOJ should prosecute.  D or R shouldn't matter.  Are you saying the present admin. is a bunch of scofflaws, who let environmental laws be broken under their noses and do nothing about it?  Again, I fail to see how this ties in to corruption in the DOJ.  Unless you're trying to prove the present administration has already corrupted the DOJ?

Again you miss my point. Tip O'Neill famously said all politics is local.

So let's say local officials decide that seatbelt laws need to be strongly enforced on what we in the south fondly refer to as revenue enhancement days.

On those days police focus on the driver of the vehicle and make sure they see that strap crossing their shoulder. They will pull over and ticket that driver if it isn't.

Does that mean it is a holiday for theives and rapists? Hardly. What it means is that seatbelt laws will be a priority.

Other days you might get a seatbelt ticket if pulled over for another offense like speeding or running a stop sign. It's a multiplier offense.

On the national level i would think that certain legislation that is the duty of the DOJ to enforce might be given different priorities based on the party in power. Environmental laws might be one example. Voter fraud might be another. Voter rights violations might be a third. Corporate malfeasance might be a fourth. You get the picture now? 

[Lanya]

I think I get the picture.
I think you do, too.   

[BT]

Glad we have settled this. No harm, no foul.