Page 23 - ACTL Journal Win24

Watergate is now more than fifty years ago, but it did happen and the nation was deeply scarred by the resulting aftermath. The Saturday Night Massacre, in which President Nixon ordered Attorney Gen- eral Eliot Richardson to fire the Special Prosecutor who was investigating him, has, until recent events, been the most direct example of political interfer- ence with the Justice Department in carrying out its prosecution function. In the face of such overt, self-interested political interference, the public’s re- action was swift and almost universally opposed to such tactics. Those overt political actions to interfere with the prosecution function of the Department went a long way towards shaping public opinion which ultimately led to impeachment proceedings and President’s Nixon’s resignation. This politi- cal interference and its aftermath was catastrophic.
Wall observed that during his service as Solicitor and Princi- pal Deputy during the Trump Administration, the ordinary norms and prohibitions on contacts with the White House were observed. “Not more than a handful of times in four years did I have a conversation with [White House lawyers] about any cases in court and never a conversation of the variety of here’s the brief [we] need to file or [we’re] going to say X.” Wall acknowledged, however, that near the end of the Trump Administration there were strains on the Depart- ment’s independence as the White House sought to have the Justice Department discharge its prosecution functions in certain ways that might serve political ends. “Attorney General Barr and Deputy AG Rosen and the head of the Office of Legal Counsel and others were fairly firm in taking a view with the President. There was obviously some dissent within the Department but at the end of the day, the Presi- dent didn’t tell anyone at the Department to take the course of action that Jeff Clark preferred and didn’t remove anyone from the senior leadership of the Department of Justice. It’s in some ways an example of how strong the norms are that you had a set of people who were saying no or telling the
President things that he didn’t want to hear in that moment and standing up for what they viewed as the departmental prerogatives in the fact of what they believed to be insuffi- cient evidence of fraud with regards to the election.”
Notwithstanding, both Wall and Lynch voiced concern for the future and the independence of the Justice Department in the face of open discussion of an intent to weaponize, or in the view of some, further weaponize the Department. On one hand, the perception that the criminal justice sys- tem is being deployed for partisan or political purposes di- minishes the standing and legitimacy of the Department. On the other hand, there is corrosive harm that might occur if certain cases are not pursued—giving the public the per- ception that some people are beyond the reach of the law.
General Lynch pointed out that one of the challenges the Department faces is that so much of the work it does must remain confidential, making it difficult to provide the level of transparency and accountability that is required for trust. When the Department is not able to provide complete in- formation, people fill in the gaps with what they perceive to be happening, and usually, this is the most negative inter- pretation. While the Department cannot freely discuss its cases and investigations, the Department has tried to estab- lish trust by having discussions with people at the commu- nity level about the issues, e.g., why it is hard to prosecute certain cases, why information cannot be shared, and what the Department’s processes are.
Ultimately, the Department speaks through its work and cases should rise or fall on the strength of the evidence and what’s proven or not. Pursuing a course other than trying to follow the evidence and facts wherever they may lead undermines public confidence in the Department of Justice and its mission. And the Department, unlike other cabinet departments, is dependent on public perceptions of fairness and impartiality to give legitimacy to its decisions. General Lynch and Acting General Wall added that they have con- cern that we live in such a “charged moment” that whether the Department continues to be independent and able to pursue matters without fear or favor will likely be sorely tested, perhaps soon.
Our speakers offered unique and important insights about the role of the Justice Department. But perhaps just as im- portant, it was interesting and encouraging to see that two committed professionals who come from quite divergent political backgrounds could so cordially and constructively discuss the need for independence at the Justice Department.
Richard H. Deane, Jr. Atlanta, GA
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