Justice without Politics
MILLER, ARTHUR S.
A political Justice Department tied to the White House has contributed to distrust of our judicial system JUSTICE WITHOUT POLITICS ARTHUR S. MILLER "The place of Justice is an hallowed...
...Without commenting on John Mitchell's trial, I can note his own admission that as Attorney General he failed to tell the President about "the Watergate horrors," an action which, though not a crime, surely was a gross dereliction of duty...
...How much that knowledge might tip the scales of justice in favor of the Government is unknown—but certainly it argues for taking the appointing function out of the Department...
...Both the officer and the Department derive all of their powers from Congress...
...it invites anarchy...
...Watergate has clearly contributed to a growing distrust of the Government and a lack of faith in the fairness and impartiality of the system of justice...
...Watergate has proved that governmental lawlessness can and does occur...
...Bates was atypical...
...A. Mitchell Palmer represented the norm...
...the game is to win, by using every technicality and legal stratagem...
...When Attorney General Robert H. Jackson was called upon to justify President Roosevelt's plan to trade fifty "overage" destroyers to Britain shortly before World War II, he did so by ignoring the Constitution and bending some statutes beyond recognition...
...Americans who were shocked by last October's "Saturday Night Massacre," when Special Prosecutor Archibald Cox was summarily sacked by an acting Attorney General appointed for that purpose, should realize that the episode merely illustrated how far the American system has deviated from Bacon's ideal...
...Since at least the days of Andrew Jackson, the Attorney General has been regarded as the President's lawyer...
...The office of the Attorney General was created in 1789 and the Department of Justice in 1870...
...it invites every man to become a law unto himself...
...When an individual confronts the Immigration and Naturalization Service (part of the Justice Department), unreviewable discretion is often the norm and arbitrariness often the rule...
...To place that question—whether the Attorney General and his subordinates can be "depoliticized"—in some perspective, we must examine the historic background...
...Palmer, who led the infamous Palmer Raids of 1920 against aliens and other "suspect" persons, said: "The Government was in jeopardy...
...funds, only to learn that his Attorney General had doubts about the validity of that policy...
...One aid to stopping abuse of discretion would be openness—the elimination of unnecessary secrecy—in the process...
...Multiply that case by thousands and the pattern of overzealous action by the Department of Justice takes on added meaning...
...Jimmy Hoffa, powerful as he was as head of the Teamsters, learned that fact of life when Attorney General Robert Kennedy set up the "Hoffa Squad" to get Hoffa...
...The problem has become so acute that voices throughout the legal profession are calling for change...
...Crime is contagious...
...Campaign managers Herbert Brownell under President Eisenhower and Robert Kennedy, named by his brother, antedated John Mitchell, the municipal bond lawyer turned political manager who took over as Attorney General in 1969 (and who, at this writing, is being tried in New York on criminal charges...
...Elliot Richardson, during his brief tenure as Attorney General, vowed to take politics out of the administration of justice, but that laudable goal was one of the victims of the Saturday Night Massacre...
...Our Government is the potent, the omnipresent teacher...
...The essential question is how to make discretionary power as tolerable or decent as possible...
...Edward Bates (who didn't last long as Lincoln's Attorney General) said: "The office I hold is not properly political, but strictly legal] and it is my duty, above all other ministers of State, to uphold the law and to resist all encroachments, from whatever quarter, of mere will and power...
...In consequence, that precinct of justice that is the Department of Justice is hardly "an hallowed place...
...For good or for ill, it teaches the whole people by its example...
...Archibald Cox, and a number of law scholars...
...President Nixon's 1968 campaign pledge to appoint a "new Attorney General," one not "soft on crime," merits mention only because the statement was reported deadpan by the press, without reference to the Arthur S. Miller is professor of constitutional law at George Washington University and is a consultant to the Senate Subcommittee on Separation of Powers...
...Openness," says law professor Kenneth Davis in his book, Discretionary Justice, "is a natural enemy of arbitrariness, a natural ally in the fight against injustice...
...As for the first, Assistant Attorney General Lamar Caudle was sent to jail in the 1950s for taking part in tax frauds, and Attorney General Harry Daugherty barely escaped prosecution over Teapot Dome...
...Paranoia on the Potomac, as disclosed in the Senate Watergate hearings and man ifested in the savage overreaction to the "March on Washington" in May 1970, is not a new invention...
...Their concern, however, is prompted not so much by what Bacon called "scandall and corruption"—although that consideration is not absent—as by the almost unrestrained discretionary powers that reside with Departmental officers...
...Even so, they are in the Executive Branch, which means that in legal theory the Attorney General, as a Cabinet official and Presidential appointee, serves at the pleasure of the Chief Executive...
...In the national bank controversy of the 1830s, for example, President Jackson wanted to have certain banks named as depositories of U.S...
...The task, then, of an Attorney General (and of other government legal advisers, such as State Department lawyers who justified American intervention in Vietnam) is not to say no to policymakers, but to find some way to say yes...
...One example will illustrate: Several years ago, a patient at a Veterans Administration hospital was erroneously injected with embalming fluid by an orderly who had the duty of giving injections...
...There, as elsewhere (for example, before the Federal Communications Commission or the Federal Trade Commission), the government attorneys are overwhelmed by the legions of high-powered and high-priced lawyers from the corporate bar...
...Not so: The "Government" is the client of the government lawyer, in and out of the Department of Justice, and it is not always true that the interests of the Government and of the people (however defined) coincide...
...But when it is an individual, not a corporation, against whom the Department is proceeding, the power imbalance is reversed...
...In 1941, Jackson signed an Attorney General's opinion legitimizing government seizure of the North American Aircraft plant during a strike, an action that rebounded eleven years later when it was cited to him as a precedent for President Truman's takeover of the steel industry during the Korean war...
...Though they are theoretically responsible for administering the nation's laws fairly and impartially, Departmental lawyers often are mere instruments of a burgeoning Executive power, there to serve their masters a few blocks away at the White House...
...A political Justice Department tied to the White House has contributed to distrust of our judicial system JUSTICE WITHOUT POLITICS ARTHUR S. MILLER "The place of Justice is an hallowed place," Sir Francis Bacon, Britain's lord chancellor, said in 1612, "and therefore not onely the bench, but the footpace and precincts and purprise thereof ought to bee preserved from scandall and corruption...
...As the Chief Executive's lawyer, the Attorney General occupies the ambiguous position of being a political officer charged with legal duties...
...It was John Mitchell, aided and abetted by William Rehnquist and Solicitor General Erwin Griswold, who produced the theory that the Government could resort to wiretapping on domestic criminal matters without judicial approval—a notion so extreme that a Supreme Court dominated by Nixon appointees unanimously outlawed it...
...The Hoffa case shows the Government's broad discretion in deciding whether or not to prosecute and how zealous the prosecution can be...
...attorneys, who are recommended by the Department after clearance from their state's Senators (the "blue slip" system), become Federal judges—which means that they carry Departmental preferences with them to the bench...
...The patient sued the Government, only to be met with the defense (from technical "agency" law) that the orderly acted beyond the "scope of his employment...
...Government spokesmen defend the settlement partly on the basis of the likelihood of eventual loss in the Supreme Court, but that does not explain why ITT was so willing to go along...
...Thus a weak, even silly, legal stratagem was used by government attorneys in an effort to stave off paying a few thousand dollars...
...In the wake of the sordid Watergate affair, the Department of Justice, charged with the solemn responsibility of furthering the rule of law, finds itself under heavy attack for having become unduly "politicized...
...Seen in full glare in the ITT settlement (once a consent decree is entered by a Federal judge, there is no review—as Ralph Nader found out when he tried to get the ITT decree overturned), it hits hundreds of thousands of Americans at the local level...
...Cutler has proffered a different suggestion—that a permanent office of special prosecutor be established to ride herd on improprieties in the Executive Branch, including the Department of Justice...
...The Supreme Court upheld that bit of Departmental arbitrariness...
...Hoffa's early release from prison by President Nixon indicates that discretion also works at the other end of the criminal law pipeline...
...attorney but, more subtly and of more importance, knows that his elevation must be approved by the Department...
...Politics" is particularly evident in the appointment of judges, of U.S...
...There has been a tendency since the Truman Administration for Chief Executives to appoint their campaign managers or other political cronies as the highest law officers of the Government...
...Tensions have erupted at times...
...The most recent of his three books on constitutional law is "The Supreme Court and the Living Constitution...
...Mitchell and Griswold, plus Deputy Attorney General Richard Kleindienst and the head of the Antitrust Division, Richard McLaren, also stage-managed the much-criticized ITT "consent decree" whereby ITT got what it wanted (the cash flow of the Hartford Insurance Company), while being required to slough off some subsidiaries...
...The Senate is about to take the first step toward such a re-evaluation...
...Lloyd Cutler, well-known Washington lawyer...
...Judgeships are the province of the Deputy Attorney General (for the Supreme Court, the Attorney General himself gets into the act), and a Federal district judge aspiring to be an appeals judge not only starts out with the attitudes of a U.S...
...Others, such as Professor Paul Mishkin of the University of California School of Law, have advanced the more radical notion that an office of "counsel general" be established completely independent of the President—an office that would take over most of the present functions of the Department of Justice and would, in addition, act as an ombudsman for citizens' complaints against improper government actions...
...fact that every new President routinely appoints a new Attorney General...
...attorneys (ninety-five in all), and of the thousands of marshals and other functionaries of the judicial system...
...So Robert Bork, the Solicitor General who became acting Attorney General and hatchetman on Archibald Cox, merely stands at the end of a line of numerous predecessors who, in Robert Jackson's terms, are "partisan advocates" for the President...
...If the Government becomes a lawbreaker, it breeds contempt for law...
...About fifty per cent of the U.S...
...My private infor mation removed all doubt...
...former Supreme Court Justice Arthur Goldberg...
...Then the citizen often finds himself bowled over by the Department's overzealous energies...
...The problem is to limit it so as to eliminate abuses...
...Scheduled to testify, among others, are former Attorneys General Ramsey Clark and Richard Kleindienst...
...Attorney Whitney North Seymour, Jr...
...The naive may believe that because the people pay the salaries, through taxes, of government lawyers, then they—the people— should be their client...
...Jackson is said to have drawn himself up and declared: "Sir, you must find a law authorizing the act or I will appoint an Attorney General who will...
...In obscure cases, such as contract claims, land-condemnation actions, or tort claims against the Government, the Justice Department lawyer also often acts with excess zeal against the individual...
...To believe the Justice Department's apologists is also to believe that ITTs executives and lawyers were stupid...
...An insistent cry is being raised in many quarters to take the politics out of the Department...
...It is not unheard of, for example, for a Federal judge to telephone the Department and ask what sentence should be imposed on a convict...
...If enacted (in present form or amended), S2803 would "establish the Department of Justice as an independent establishment of the United States...
...Jackson, by then a Supreme Court Justice, neatly sidestepped the question in his concurring opinion outlawing the seizure: "I do not regard it as a precedent for this, but, even if I did, I should not bind present judicial judgment by earlier partisan advocacy"—a classic acknowledgment of the politicization of the Department of Justice...
...Justice Louis Brandeis uttered the classic statement warning against official illegality: "In a government of laws, existence of the Government will be imperiled if it fails to observe the law scrupulously...
...It is often said that the Department of Justice has only one client—the Government—but that is true only insofar as there are no disputes between the Executive and the other branches...
...The Ervin hearings may help us find our way out of an intolerable situation, for we must face the fact that our present system of justice through politics— often corrupt politics—cannot stand much longer without eroding our constitutional democracy beyond the point of no return...
...get him they did...
...At least three levels of impropriety exist within the Department of Justice: 1) crime and corruption, 2) unrestricted discretion, and 3) overzealousness of lawyers...
...Not all top legal officers have taken the view that they are partisan advocates for the Executive or another branch of the Government...
...It is a proud tenet of the Solicitor General's office that the Government's case is won when justice is done, but all too often that precept is forgotten...
...Plea bargaining in criminal law matters is routine (although it is unique to find a Vice President engaging in that process...
...Senator Sam J. Ervin's Subcommittee on Separation of Powers has scheduled hearings on S2803, introduced by Ervin on December 12, 1973...
...Some discretion is, of course, necessary...
...The decision not to take the ITT case to the Supreme Court is a prime example of the second level of Justice Department impropriety—the almost uncontrolled discretionary powers the Department all too often exercises...
...That was shown, for example, when Ernest Mandel, a leading Marxist scholar in Belgium, was denied admission into the United States, where he had been invited to give some university lectures...
...former U.S...
...Jackson prevailed, just as Nixon did in the Cox firing...
...The third level of Justice Department overreaching is the way in which government lawyers, often but not always from the Department's corps of 3,000 attorneys, fail to realize the disproportionate amount of power they have vis-a-vis individual litigants...
...I do not speak here of the ITT settlement or of the antitrust action against IBM...
...Of those powers, whether to prosecute or not to prosecute is particularly worrisome...
...Richardson's intent may yet be achieved, however, if Congress will be sufficiently influenced by the Watergate disclosures to reassess the Department of Justice...
...Result: total paralysis of the patient...
Vol. 38 • April 1974 • No. 4
