Justice

If there is one federal agency crying out for reform, it is the Justice Department. Attorney General Gonzalez was forced to resign in disgrace after losing the confidence of members of Congress from both parties. The politicization of the Justice Department, brought to light by the firings of a number of U.S. Attorneys, has still not been fully investigated. And the Department's policies on torture and wiretapping may leave the greatest stain of all on the Bush Administration.



Therefore it may be appropriate that Obama's nominee Eric Holder receive careful scrutiny from the Senate. But the hostile tone of Senator Specter's remarks yesterday was still surprising. Rather than focusing on the issues of integrity, politicization, and adherence to the rule of law and the Constitution, Specter instead questioned whether Eric Holder would be sufficiently independent from the President. Perhaps some of this criticism is a reaction to the disastrous leadership of Alberto Gonzalez, but we should not allow legitimate concerns about the mistakes of past administrations to hobble future administrations that are going to be facing different issues.

Traditionally it has been considered helpful to the functioning of a coherent administration, for the Attorney General to be close to the President. The strong arm of the law, whether to enforce civil rights, or to shape antitrust policy, or to regulate securities markets, is an essential tool of any administration's ability to pursue its goals. The Attorney General must be in sync with the President on these issues. President Kennedy chose his own brother for the job. President Reagan appointed his close confidants William French Smith and Ed Meese. President Clinton, on the other hand, was saddled with an attorney general who was highly competent but never especially close to him, and as a result found himself the subject of several questionable investigations, and also never seemed fully in control of this important arm of the government.

The idea that the Justice Department should be independent of the Executive Branch of which it is a part is an idea that itself should receive scrutiny. Granted that the Executive Branch itself is not above the law, and that members of the administration must remain subject to investigation for abuses and illegalities. Granted also that the Attorney General's first loyalty must be to the Constitution and the law, not to the president. Still, the Attorney General's primary role is not to serve as a watchdog over the President who appointed him, but rather to act as an agent of the President. If we insist that the Attorney General remain wholly independent of the President, Presidents will respond by moving more of the legal functions of their office inside the White House, in the manner that the White House National Security staff has sometimes been used as a miniature State Department when the Secretary of State was viewed as too independent or ineffectual. The Cabinet should be allowed to function as a team under the direction of the President. Congress has an important role as a check on the Executive Branch, a role which it too often abdicated during the Bush administration. Congress should not be foisting that role onto the Cabinet officers themselves.