Meltdown at the Department of Justice

By Scott Horton

Note: Updated August 2, 2007.

Let's imagine you're a career prosecutor, up against a very shadowy enterprise. Its three most senior figures have each given false statements under oath to an investigatory body. When documents were demanded, they dallied, stalled, and did whatever they could to gum up the works. As documents were produced, you discovered references to other, highly relevant documents that had been withheld without any notice.

Key figures begin to resign, and one key aide, when told she would be brought in for testimony, has her attorney tell you she'll take the fifth. Then an affiliated enterprise, which appears to be calling all the shots at your original target (though from behind an enormous screen) tells you: sorry, the email traffic you are looking for concerning the original target has been "accidentally deleted."

It sounds pretty bad. It sounds like it's its time to convene a grand jury, notify folks that they're targets and send a couple of teams of FBI agents out to seize servers and files before more obviously relevant documents and materials are destroyed.

And then we come to the shocker. The enterprise in your crosshairs, manifesting behavior patterns typical of the worst white-collar criminals, is the Department of Justice, and the three chief offenders are the three most senior law enforcement officers in the country.

The Department of Justice had, for decades, a reputation for attracting the brightest and most dedicated career public servants from law schools and law firms. Some of the most capable and most ethically demanding lawyers I have ever known went to the Justice Department or worked there. How must those people feel today? Isn't the answer obvious?

If you're having any doubts on that front, the current issue of FindlawLegal Times has a fascinating interview with the just-retired director of the Office of Information and Privacy at the Department of Justice, Daniel J. Metcalfe. He began serving the Department 35 years ago in the Nixon Administration. How does he assess the current situation?

Under Gonzales, though, almost immediately from the time of his arrival in February 2005, this changed quite noticeably. First, there was extraordinary turnover in the political ranks, including the majority of even Justice's highest-level appointees. It was reminiscent of the turnover from the second Reagan administration to the first Bush administration in 1989, only more so. Second, the atmosphere was palpably different, in ways both large and small. One need not have had to be terribly sophisticated to notice that when Deputy Attorney General Jim Comey left the department in August 2005 his departure was quite abrupt, and that his large farewell party was attended by neither Gonzales nor (as best as could be seen) anyone else on the AG's personal staff.

Third, and most significantly for present purposes, there was an almost immediate influx of young political aides beginning in the first half of 2005 (e.g., counsels to the AG, associate deputy attorneys general, deputy associate attorneys general, and deputy assistant attorneys general) whose inexperience in the processes of government was surpassed only by their evident disdain for it.

Having seen this firsthand in a range of different situations for nearly two years before I retired, I found it not at all surprising that the recent U.S. Attorney problems arose in the first place and then were so badly mishandled once they did.

So what led Metcalfe to depart so soon? That's one of the shockers of the piece. He was directedasked to participate in the preparation and publication of an op-ed which was awas a conscious lie. It ran in USA Today in March 2006 under the heading "Committed to Being Open." Prepared under the supervision of one of Attorney Gonzales' political henchmen, it intentionally misled the public about the Administration's policies:

The day that I decided to retire, for example, was one on which I was asked to participate in a matter in which a significant part of the department's position was aiming to be—there's no other word for it—false. Briefly stated, someone in the White House had determined that it would be a good idea for an op-ed piece on the subject of government secrecy to be prepared, and although its subject matter extended beyond the Justice Department's jurisdiction in multiple respects, it was decided that the Justice Department's Office of Public Affairs would take on that task nevertheless. I was perfectly able to make several corrections and substantive improvements to a last-minute draft that I received but drew a line at even attempting to "improve" a Defense Department-related paragraph within it that was incorrect by a full 180 degrees.

Knowing what the facts of that matter actually were, I flatly refused to aid that part of the enterprise, pointedly observing that the Gonzales-era political appointee who was behind the draft did, in fact, to my own certain knowledge, know them as well. I suppose I can take some small satisfaction that the false part of that "final draft" was then entirely replaced with something that was at least arguably true, but that's hardly the point. (That political appointee, by the way, did indeed receive his promotion, but is no longer in Washington.)

So has the Department of Justice simply been converted into a tool of the political apparatus managed by Karl Rove within the White House? Yes. The Department's independence

was shattered in 2005 with the arrival of the White House counsel as a second-term AG. All sworn assurances to the contrary notwithstanding, it was as if the White House and Justice Department now were artificially tied at the hip—through their public affairs, legislative affairs and legal policy offices, for example, as well as where you ordinarily would expect such a connection (i.e., Justice's Office of Legal Counsel). I attended many meetings in which this total lack of distance became quite clear, as if the current crop of political appointees in those offices weren't even aware of the important administration-of-justice principles that they were trampling.

This matters greatly to Justice Department employees of my generation. They are now the senior career cadre there, with the high-grade institutional knowledge that carries the department from one administration to the next, and when they see a new attorney general come from the White House Counsel's Office with a wave of young "Bushies" in tow and find their worst expectations quickly met, they just as quickly lose respect for nearly all of the department's political leadership, not to mention that leadership's "policy concerns." That respect is a vital thing, as fragile as it is essential, and now it's gone.

This entire interview is a must-read. And at this point it is further confirmation, from deep inside the institution, of the gravity of the current situation. The real question now is: what highly qualified and motivated career public servant would want to work under such conditions? Gonzales has indeed crafted the parallel of the Fire Department that appears in Ray Bradbury's famous Fahrenheit 451—which, of course, existed not to put out fires, but to start them.