Re-forming the Department of Justice

For most of the last sixteen years, the Department of Justice (DOJ) has been dominated by officials of a progressive bent, installed by the Obama and Biden administrations. The four-year Trump interlude did not entail much change. In his first go-round, President Donald Trump was not wise to the ways of Washington, and the Obama administration had burrowed lawyers into the DOJ career track – i.e., in addition to political appointees, who a new administration customarily replaces, DOJ was steered by prosecutors in regular employee slots, who have civil service law protection and are difficult to remove. The Trump transition was inefficient, and Obama holdovers continued to wield influence. Things changed when Bill Barr, a former attorney general and accomplished conservative legal scholar, took the helm; however, he had less than two years, which was not enough time to turn the ship around.

Political philosophy is uniquely important to the direction of the Justice Department because of its unusual mission.

Most executive departments exist solely to support the president’s constitutional duties to execute the laws, conduct foreign policy, and secure the nation. DOJ has such a support mission, too. It is supposed to direct finite law-enforcement resources to the president’s enforcement priorities – depending on ideological bent and existing crime conditions; some presidents may focus on, for example, border security and counterterrorism, while others concentrate on, say, corporate and Medicare fraud – and, indeed, on whether policing practices are more pernicious than crime itself. DOJ also carries out the president’s domestic security and foreign counterintelligence missions; rather than law enforcement in anticipation of judicial proceedings, these are quintessential political functions of the executive – intelligence-gathering and national defense.

Beyond that, however, DOJ is responsible for enforcing the laws even-handedly, insulated from politics. The rule of law, without which there can be no flourishing free society, depends on the public perception that law enforcement is non-partisan. Hence, DOJ must always resolve the tension between (a) being accountable to the president’s direction as a subordinate in a political branch of government and (b) faithfully upholding the law to the exclusion of politics.

Progressive Democratic administrations, which are not wedded to the constitutional construct of a “unitary executive” – an accountable president in whom all executive power is endowed – tend to resolve this tension by treating DOJ and its components (particularly the FBI) as if they were an independent fourth branch of government. Of course, when a Democrat is in the White House, DOJ does the president’s bidding. When Republicans are in power, though, any effort by the president to direct law-enforcement officials is derided as “political interference” and an undermining of the rule of law.

Democrats are the party of government, and their progressive ideology pervades the federal bureaucracy, including DOJ. For the Framers, there were few threats of tyranny more frightening than the prospect of coercive police power wielded by officials who were not accountable to the people whose lives they undertook to regulate. Nevertheless, DOJ progressives take a fourth-branch position: they portray their enforcement priorities – which tend to be different from a Republican president’s – as dictated purely by “the rule of law” (as they construe the law). Any questioning of their motives, including by the White House, is limned as an attack on the law itself.

This posture can be intimidating to presidents and their advisers; to be accused of political interference (usually by DOJ leaks to legacy media outlets) is politically damaging. This gives DOJ a good deal of autonomy. But to paraphrase Lord Acton, unchecked power leads to corruption. Inexorably, if no one is policing the police, they will abuse their authority, including by turning it against those they disfavor politically.

That is the story of the past decade. Progressive Democratic administrations exploited the government’s law-enforcement apparatus against Trump. Even when Trump was in office, willful bureaucrats sustained these investigations. They accused him of obstructing justice when he proclaimed his innocence, threatened to fire investigators, and otherwise sought to wrest back control of a department that, at least nominally, answered to him.

Lawfare turned out to be a bad political strategy. First, it collapsed because Democratic prosecutors absurdly overcharged cases against Trump and failed to account for presidential immunity – which the Supreme Court explicitly recognized in its July 1 ruling, Trump v. United States. Second, the unabashed politicization of law enforcement offended many Americans; as tawdry as much of Trump’s underlying behavior was, voters were more alarmed by the selective, punitive exploitation of legal processes for partisan ends.new guidelines must be established to keep the DOJ out of politics and politics out of the DOJ when possible. Politicians are not above the law, but it damages the republic if prosecutors influence elections.

The speed with which the federal Trump prosecutions were dismissed after his election victory signals that Democrats realize they have overstepped. That creates an opportunity for the incoming Trump administration’s DOJ to tame the bureaucracy and end lawfare.

First, new leadership must emphasize that DOJ is not autonomous. It is a subordinate executive agency that takes presidential policy direction. It must, as Trump has made clear, prioritize the crime problems that were front-and-center in his successful campaign: illegal immigration and surging urban crime. Partisanship must play no role in the charges for individual cases. But bureaucrats who resist the president’s policy directives must be marginalized or terminated – on that score, expect a battle over the president’s authority to fire career bureaucrats despite progressive efforts to beef up civil service protections.

Second, there must be new guidelines to keep DOJ out of politics and politics out of DOJ when possible. Politicians are not above the law. But it damages the republic if prosecutors influence elections. DOJ must exercise its discretion to decline prosecution in politically fraught cases unless there is a profoundly serious crime supported by convincing evidence. The days of creative prosecutorial theories, stretching the law’s net to snare political adversaries, must be over.

This will not be easy. Many Trump supporters like the idea of retributive law enforcement that would give Democrats a taste of their own medicine. In his first administration, Trump frequently went beyond setting DOJ policy direction by engaging in public commentary aimed at influencing individual cases – an affront to courts that must administer due process and a habit that, as Barr observed, made DOJ’s job impossible.

Still, the Justice Department cannot achieve needed reform without addressing the basics: reining in the bureaucrats and ending lawfare.

Andrew C. McCarthy, a bestselling author and former federal prosecutor, is a contributing editor at National Review.