[troutman]

Fixing the Department of Justice
https://www.americanbar.org/groups/c...nt-of-justice/

Independence means that the White House should not be involved in decisions regarding the investigation and prosecution of Trump administration officials, including the former president. Undoubtedly, this degree of independence will pose difficulties. Investigations of a previous administration, particularly of a past president, could well undermine the legitimacy of the department in the eyes of some 70 million Trump voters and lead to domestic disruptions. Further, prosecuting senior leaders from the prior administration is potentially a bad precedent, easily subject to abuse. On the other hand, letting crimes go unpunished invites greater impunity in the future.

The best course through these shoals is to isolate the decisions of the DOJ from political influence as far as possible, with one exception. The president should be able to stop, but not to initiate, an investigation and prosecution of his predecessor. The potential for social upheaval is too dire to deny the president any say.

There remains the question of which investigations the Justice Department should undertake. It is hard to articulate any blanket rules, but the department may wish to distinguish between actions by Trump officials that violated the constitutional rights of individuals—such as the separation of immigrant children from their parents—and those that affected the allocation of power between the branches of government. The political consequences of political decisions—for example, losing an election—may themselves sufficiently deter transgressions against Congress such that DOJ investigations are not needed, but they may not be sufficient to deter transgressions against individuals absent the threat of DOJ prosecution. The point is not that the department should forgo all investigations of lies, usurpation, and other misconduct vis-à-vis the other branches. It is, rather, that in balancing rule-of-law values on the one hand against public unrest and precedential risks on the other, the inter-branch category should carry somewhat less weight, depending, importantly, on the seriousness of the breach.

Second, the department should reinstate policies, abrogated by Attorneys General Sessions and Barr, that protect civil liberties and secure the checks and balances of our constitutional system. The department should do this through formal regulations issued after notice and an opportunity to comment. Under the Administrative Procedure Act (the APA), the department cannot rescind such regulations without complying with notice and comment procedures, making them more durable than policies simply announced by the attorney general or other officials.

Third, the department should adopt regulations that commit it to cooperate with congressional oversight, within the bounds of privilege law and consistent with the integrity of individual law enforcement matters. Those regulations should bind the department to engage in the accommodation process that the executive branch and Congress have traditionally undertaken to resolve privilege disputes short of litigation. In that process, the executive branch seeks to satisfy the legitimate investigatory and legislative interests of Congress without harming its own institutional interests. Congress, at least in theory, does the same. In most cases, there is a middle ground that is satisfactory—or at least equally unsatisfactory—for both sides.

Fourth, the department should revitalize its Civil Rights Division, which has been hollowed out during the Trump administration. Civil rights enforcement should once again be a priority. For example, the division under Attorney General Sessions abandoned consent decrees as tools to settle investigations of police departments that were accused of discriminatory law enforcement practices. Whether or not those decrees are still in force, the division should insist that the departments maintain the standard of conduct to which they previously agreed.

Fifth, the Department of Justice has the responsibility to defend the president and other officials against lawsuits relating to their official actions. The department’s defense of President Trump suggests that this test does not clearly demarcate the line between representing the president personally, which is not the department’s job, and representing the presidency, which is. The department, for example, appeared as counsel for the president in a libel suit by a woman he accused of lying when she claimed he sexually assaulted her. The department also defended the president’s continued receipt of business favors from foreign officials. These are not the kinds of cases that the department has previously treated as within the scope of the president’s duties, justifying federal representation. A task force to articulate guidelines that clarify when DOJ representation of a president is appropriate and when it is not could restore a principled approach to these decisions.

Finally, the DOJ should strengthen the independence of the special counsel and, concomitantly, should consider treating all political appointees within the DOJ as presumptively recused in investigations of the president who appointed them. That would leave prosecutorial decisions in the hands of career prosecutors. To paraphrase Attorney General Barr, even a Montessori preschool system is preferable to the current arrangement, which stokes a perception of corruption and poses too great a temptation to make that perception real.