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But what makes the Justice Department different is the deeply entrenched notion and norm that when it comes to issues of administering justice and holding people ac- countable in the context of a criminal prosecution, the Justice Department should always act “without fear or favor” and never to carry out a political objective.
it. For that to be maintained, people have to have faith that justice will be fairly dispensed.
Wall agreed about the importance of independence for the Justice Department, but he pointed out that there is some- thing odd about referring to an Executive Agency as being independent of the Administration of which it is a part. One would never refer to the State Department or Education De- partment as “independent” and would never think of the Secretary of State, for example, as having his or her own “in- dependent” foreign policy. Those executive agencies are right- ly expected to carry out the initiatives and even directives set out by the President. And Wall noted that the Constitution does not refer to the Attorney General. “It says the President shall take care that the laws are faithfully executed. So if you sort of looked at the rest of the cabinet and the Constitution, you’d think, well, the AG is surely subservient to the Presi- dent in the execution of the laws and there’s a sense in which that’s true because the President can set law enforcement pol- icy, like he can set education or foreign policy.”
In practice, there are rules of engagement for interactions between the Department of Justice and the White House in instances involving specific matters and cases, while allow- ing for engagement on policy issues or matters of national security, for instance. The AG is a member of the President’s cabinet and on the National Security Council. On matters of policy, the AG participates in discussions with the Pres- ident and other cabinet members, particularly where there are interlocking policies at play. General Lynch recalled that while she was in office she had a number of discussions with the head of the Department of Veteran Affairs on opioid issues, which have deeply impacted that constituency. Sim- ilarly, she had discussions with the Department of Veteran Affairs and the Department of Health and Human Services on issues relating to gun control.
In contrast, Lynch noted, “when it comes to cases, you do not have those discussions.” Wall added that one measure of the Department of Justice’s independence is how strictly the contacts policy (i.e., the rules about the kinds of contacts the White House can have with the Department of Justice) is observed in the cases that count.
General Lynch acknowledged that sometimes these rules on engagement led to “interesting results.” She recounted the story of the Department conducting the execution of a search warrant on a major tech company around the same time that the White House was holding meetings with se- nior executives from Silicon Valley, including executives from the subject company. After receiving the warrant, rep- resentatives of the company asked the White House Chief of Staff, “Can you reign in your Attorney General and your Department of Justice?” He responded “No, that’s not what I do.” But General Lynch did get a polite message asking,
“What are they talking about?”
The need for independence more than makes up for such occasional embarrassments because in the final analysis, the Justice Department finds much of its credibility and stand- ing with the public in the fact that it is has historically been perceived as and thought to be independent in exercising its role. But when people lose faith in the Department, said General Lynch, it creates a cascading effect: “When you lose those norms and when we avoid them or when we some- how manage not to follow them, the consequences are dire and that’s why those of us who care so much about the Department focus on them so much.”
Despite protocols and rules to limit contacts between the Justice Department and the White House, history has shown that there are times when those guardrails either did not hold or they were ignored. General Lynch noted “The reason why we cling to these norms so much is that if you’ve ever seen what happens when they go off the rails, the results can just be catastrophic.”
Wall added that while there are “lots of permissible ways that the White House can speak with the Attorney General or others at the Department . . . we have simultaneously devel- oped this idea that you shouldn’t be talking about . . . pend- ing cases and the investigations and directing outcomes.” Put differently, there is a role for the White House, but we generally draw the line at talking about cases or directing outcomes in investigations.
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