The continuing reports about the politicization of Justice Department have shaken the confidence of Americans that our laws are being “faithfully executed.” This is the Constitution’s charge to the President, and thus to the Justice Department. While the Department can never be completely ‘apolitical’ because the Attorney General is a political appointee of the President, it is supposed to ensure the fair and impartial administration of the laws. If Michael Mukasey, the former judge who is President Bush’s nominee to succeed Alberto Gonzales as Attorney General, is confirmed, he must take immediate steps to restore our confidence in the Department.  

He must, for example, heed the alarms sounded by Harvard Law Professor Jack Goldsmith, who resigned as head of the Department’s Office of Legal Counsel (OLC) in 2004.  OLC’s mission is to advise the executive branch about the legality of its proposed actions, but Goldsmith’s recent book, The Terror Presidency, and his October 2 testimony before the Senate Judiciary Committee, describe how OLC instead manipulated the law to justify actions that had no valid legal basis. He characterized one of those actions -- the NSA’s wiretapping program -- as the “biggest legal mess I have encountered.” Despite his view that at least some aspects of the program were clearly “without legal footing,” there was enormous political pressure to simply approve it rather than to ask Congress to change the law. The program went forward in a manner designed to avoid any congressional or public scrutiny of its legal justification (or, apparently, its lack of justification).   Ultimately, the program was modified, but only because many of the Department’s top leaders, including the Attorney General, Deputy Attorney General, and Goldsmith, threatened to resign if it wasn’t.

Just last week, the New York Times revealed how in 2005, shortly after Alberto Gonzales became Attorney General, the Department issued secret opinions that amounted to an “expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.” These opinions were approved over the objections of the then-Deputy Attorney General. Shortly afterwards, Congress passed – and President Bush signed – a law that prohibits these techniques.  Yet during congressional consideration of the law, and even after it was passed, the Department never revealed that it had in fact authorized these techniques. Even now, despite outraged congressional demands, the White House is refusing to release the documents.

The Times article also recounts that former Attorney General John Ashcroft called John Yoo, Professor Goldsmith’s predecessor at OLC and the author of many controversial legal opinions, “Dr. Yes” for his failure ever to tell the White House that its policies were illegal.

Judge Mukasey must also address the apparent politicization of the Department’s hiring process. In an April 2007 letter to the House and Senate Judiciary Committees, anonymous Department employees wrote that the Department’s hiring process was “consistently and methodically being eroded by partisan politics.” They particularly singled out the Attorney General’s Honors Program through which the Department hires recent law school graduates.  Career attorneys, who had handled this hiring program through prior Republican and Democratic administrations, were removed from hiring committees, and the program was turned over entirely to political appointees. Consequently, most of the rejected applicants had interned for a congressional Democrat, clerked for a judge appointed by a Democratic president, worked for a “liberal” cause, or otherwise appeared to have “liberal” leanings. Outstanding graduates from the nation’s leading law schools failed even to secure interviews. 

One of the Department’s most sensitive and important duties – the prosecution of crime – appears also to have been politicized. Nine U.S. Attorneys were fired in 2006, and according to credible allegations, their firings stemmed from their refusal to initiate prosecutions based, as they saw it, on politics rather than merit. The Department’s Inspector General is now investigating these firings as well as the allegations that the Department’s process for hiring new attorneys relied upon improper political considerations. Because of the turmoil at the Department, most of its top-level positions are now vacant. 

One of the principal criticisms of Alberto Gonzales’ tenure as Attorney General has been that Mr. Gonzales appeared to believe that he was still the White House Counsel. Thus, he seemed more focused on finding legal justifications for the president’s desired programs than on serving as the leader of the Department of Justice, charged to dispense independent and impartial justice. 

Judge Mukasey is scheduled to appear before the Senate in two weeks to answer questions about his qualifications to be our next Attorney General. If he is confirmed, he faces many urgent challenges. He has a reputation for independence, but the nation is eager to hear his assurance that he will exercise that independence, that he will reverse the politicization of the Department, and that he will restore the rule of law. Perhaps most importantly, he must assure us that he will, when appropriate, say no to the White House.  We cannot afford another Dr. Yes.