Cross Posted at Legal Schnauzer
Barack Obama is not the first U.S. president to inherit a Justice Department that was soiled by his predecessor. Thomas Jefferson faced a similar mess, and he took decisive steps to fix it--reviewing abusive prosecutions, terminating cases, pardoning those who had been wrongfully convicted. A prominent legal-affairs reporter says new attorney general Eric Holder should follow Jefferson's approach.
What kind of Justice Department did Holder inherit? Let's just say it's as if Holder returned home one night to find someone had left the rusting hulk of an automobile, resting on concrete blocks in his backyard.
Is the "old girl" beyond repair? No. But her prognosis is dire. And Holder is going to need lots of grit and elbow grease to get her running again.
Fortunately, Holder can turn to a pretty fair shade-tree mechanic, of the legal sort. Goes by the name of Scott Horton. Writes for Harper's magazine. Works for Columbia University School of Law. Has good rates.
Horton has taken a gander at the mess in Holder's backyard. And he has a few ideas, five to be exact, on how to tune her up and get her running again.
First, Horton notes, Holder is going to need the support of those above him. And President Barack Obama presented encouraging remarks at Holder's installation ceremony last week. A sampling:
And that's what's always distinguished this nation--that we are bound together not by a shared bloodline or allegiance to any one leader or faith or creed, but by an adherence to a set of ideals. That's the core notion of our founding--that ours is a "government of laws, and not men." It is the motto inscribed on the library of my law school alma mater: "Not under man but under God and law."
I encourage Schnauzer readers to examine all five of Horton's recommendations for breathing life back into our Justice Department. But here's the one that jumped out at me:
Instigate a thorough review of political prosecutions, overturn prosecutions that were abusive, and take appropriate disciplinary actions with respect to those who instigated them. Following the path of the lowliest authoritarian dictatorships, the Bush Administration used the Justice Department to bring criminal prosecutions against political adversaries for partisan political purposes. That’s no longer debatable. It’s an established fact. Yet the Justice Department has yet to lift a finger to correct these abuses. Victims of the worst of these prosecutions languish in prison, and the prosecutors who disgraced their offices remain on the job—indeed, this weekend I read that one was just promoted in an act of calculated "burrowing." When Thomas Jefferson came to office following the elections of 1800 he was forced to deal with a situation almost exactly like the one that Holder now faces. He called the two-year terror-spree of political prosecutions by the Federalists the "Reign of Witches." Jefferson and his attorney general quickly reviewed the abusive prosecutions, terminated cases, and issued pardons to the substantial number of people who had been wrongfully convicted in our still highly imperfect criminal justice system. Eric Holder would do well to study the precedent Jefferson furnished. He needs to take this legacy of abuse of the powers of the Justice Department and confront it directly.
This is powerful stuff from Horton. It is a valuable history lesson, showing that our Justice Department has been abused before. Thomas Jefferson took decisive steps to repair the mess he inherited. Horton suggests that Holder make history repeat itself.
I would add one other step: Ensure that those who soiled our Justice Department are held accountable, criminally if that is appropriate. And be sure a civil mechanism is available so that victims have a chance to be made whole.
Is Holder up to the task? Obama, after making a joke about his friend's abilities on the basketball court, said the answer is yes:
Now, I can't vouch for Eric's skills on the basketball court--(laughter)--but I can confirm that he is thoroughly prepared to take on the law enforcement challenges of this new century. As a student of history, he also knows history's lessons about what happens when we let politics and ideology cloud our judgment -- and let fear and anger, rather than reason, dictate our policy. These are mistakes he will not repeat. Because in the end, Eric comes to this job with only one agenda: to do what is right under the law.