Thoughts on the Department of Justice

The United States of America is a nation of law. Or so we were taught in school. We have a venerable Constitution that defines the overall structure of the Republic and a Congress and president that are responsible for enacting laws. We have a judicial system, including a Supreme Court, that interprets the law and relies on the body of laws and judicial opinions developed over more than two centuries.

Justitia by
Maarten van Heemskerk, 1556

These institutions and resources, though vitally important, underspecify how the country actually works. For example, the Constitution is silent about political parties, yet our two-party system of private entities has become a seemingly essential component of our governing system.

Additionally, American government adheres to many unwritten rules. Votes are countered honestly, at least most of the time. Presidential candidates disclose their medical and financial records before standing for election. Presidential nominees requiring Senate confirmation get a hearing and a vote by the Senate. Presidents, who occasionally are known to shade the truth, are not expected to lie more often than not. The Department of Justice administers federal laws fairly and without favoritism.

Donald Trump and his Republican allies have defied conventions that may not be enshrined in law but which are essential to the workings of the Republic. He refuses to disclose his tax returns and offers laughable excuses for medical information. He fires competent office-holders and replaces them with temporary lackeys. He lies to the public, often seemingly for the sheer sport of it.

Most distressingly, the convention of a Department of Justice enforcing the rule of law and representing the interests of the United States before the courts has been conspicuously violated. Under President Donald Trump, Attorney General William Barr has led a Department of Justice intent on protecting the president, his friends, and his personal interests. Readers can easily enumerate the myriad ways in which Mr. Barr has acted as the president’s fixer, rather than an advocate for the rule of law and for the interests of the United States.

One hopes that, in November, President Trump will fail in his re-election bid, and, in January, President Biden will fire Mr. Barr and nominate a more conventional Attorney General. We should ask what we can do to avoid ever having another Attorney General like William Barr.

Assuring the independence of the Department of Justice is difficult. Although it seems as though William Barr is doing everything the president wants him to do, it is not really clear that he is taking his orders from the chief executive. Mr. Barr seems to hold the view that the president can do just about anything, and his interests override those of everyone else and of the country generally. He never should have been confirmed by the Senate.

The view of the presidency held by William Barr is, happily, a minority one. One hopes that the Senate will, in the future, assure that no one with such an anti-democratic view will be approved as Attorney General. (Actually, senators had every reason to expect Mr. Barr to act as he has, despite his less than candid answers before the Senate.)

What is needed (and the best we can do) is a mechanism to assure that justice is administered fairly and without influence by the president.

Ideally, I think, the Department of Justice should become a fourth branch of government, headed by an Attorney General appointed by the president and confirmed by the Senate. The Attorney General should have a fixed term, perhaps of 10 years, and be removable for cause only through impeachment by the Congress. The advantages of this organization should be immediately apparent. Although this would be a logical arrangement, it is unlikely to be implemented, as doing so would require a constitutional amendment.

Perhaps a not-too-dissimilar organization would work nearly as well based on something like the Federal Reserve model. Presidents invariably try to influence the Federal Reserve, but usually without success. Of course, the Fed is protected from presidential influence in part because the president does not control who all the decision-makers are. Nonetheless, the Department of Justice could be restructured a largely autonomous body with a fixed-term leader insulated against arbitrary dismissal.

I  don’t have a fully worked-out plan for Justice, but I do think the above ideas should be given some consideration. The rule of law in the United States is under threat, and we need to do something about it.

Note: As it happens, today is the 150th anniversary of the establishment of the Department of Justice. Most people assume Justice it is much older. Its beginnings and thoughts about its possible future are offered in a Washington Post editorial that can be read here.