The U.S. Department of Justice (DOJ), similar to other institutions under the current administration, is unsettled, adrift, and no longer composed of the most upstanding people. Like heads of other executive branch agencies, DOJ leaders have repeatedly violated long-standing norms, abandoned traditional priorities, and demoralized the DOJ’s workforce over the past few years. But the DOJ is also fundamentally unlike other institutions of government.
As U.S. Attorney General Griffin B. Bell said in 1978, the DOJ is “the acknowledged guardian and keeper of the law.” The DOJ is supposed to enforce the law by investigating and prosecuting those who violate it, defend the law by bringing and opposing lawsuits that challenge it, and promote the law by advising and counseling the federal government on what is permissible. And it should do so guided by an unwavering dedication to the rule of law and the fair and impartial administration of justice. In these and many other ways, the DOJ should protect not only the safety, freedom, and equality of Americans, but also the promise of America itself.
All too often, however, certain individuals within the DOJ have acted at odds with the DOJ’s critical mission and violated civil and criminal law. They have compromised the independence of the agency to help political friends and harm political foes. They have improperly overruled the decisions of career prosecutors in pending cases. They have refused to defend federal laws and policies they simply dislike or that do not suit their agenda. They have declined to meaningfully enforce civil rights and environmental laws. And they have jeopardized the integrity of other men and women of the DOJ in the process. These actions have undermined public confidence in the DOJ, demoralized those in its career workforce who are reputable, and caused thousands of former DOJ officials—those who have served in Republican and Democratic administrations alike—to speak out, sound the alarm, and call for change.
This blog post attempts to answer that call by focusing not on specific actions of the current DOJ but on restoring and improving the institution itself. The Center for American Progress consulted a number of former DOJ officials—political appointees and career attorneys alike, many of whom served for decades in administrations of both parties—to identify key recommendations about what the next attorney general should do on day one, without the need for congressional action, to strengthen the norms that have long informed the DOJ’s work, improve public confidence, and rebuild morale in the workforce. While there will be considerable focus on the substantive policy agenda that this administration and attorney general should pursue, it is important to examine the internal processes, procedures, and administrative responsibilities that are crucial to preserving the DOJ’s integrity and independence.
No matter who is president, this administration, Congress, and inspectors general must examine the depths of the damage done over the last few years. To be sure, more needs to be done than what it suggested herein. These twelve recommendations, however, serve as a starting point for the current attorney general to restore the norms and improve the institution of the DOJ:
- Codify stronger limits on contacts and communications with the White House. The DOJ should clearly articulate what kinds of communications are appropriate and prohibited, especially those that deal with prosecutions and criminal investigations.
- Adopt a clear, consolidated policy regarding election-year activity. While the DOJ has an obligation to prosecute election-related crimes, it must do so in a fair, impartial, nonpartisan manner and never for the purpose of affecting an election or of giving an advantage or disadvantage to any candidate or political party.
- Establish smarter charging and sentencing policies free from politicization. The DOJ should encourage individualized assessments of the appropriate charges in a given case, but in no circumstance should the defendant’s relationship with the president or other elected official have any impact on any criminal matter. Furthermore, the DOJ must review its current recusal policies to determine whether they sufficiently protect against even the appearance of impropriety.
- Adopt a written policy regarding the DOJ’s obligation to defend the federal government in litigation. While administrations have policy prerogatives, a clear, written policy that explains when decisions to defend the federal government are appropriate and who ultimately is responsible for making them would provide needed transparency.
- Prioritize restoring trust in the justice system by coordinating at the departmental level. The efficacy and impartiality of the country’s systems of justice are integral to a well-functioning democracy. Thus, an office at the departmental level should coordinate all the DOJ’s activities to reform the criminal justice system.
- Take a whole-of-government approach to civil rights. Protecting and promoting civil rights is the responsibility of every component of the federal government, and the DOJ’s Civil Rights Division should be empowered to lead that effort.
- Restore integrity and fairness in immigration proceedings. The next attorney general should make sure that the DOJ is providing immigrants with the full set of rights that they are entitled to under law and that immigration judges have the independence and autonomy they need to effectively manage their dockets and deliver justice.
- Improve the FISA process. The DOJ must ensure that the inspector general’s recommendations for Foreign Intelligence Surveillance Act (FISA) reform have been appropriately implemented, that the FBI’s corrective measures have been effectively adopted, and that additional changes are made to make certain that information submitted to the FISA court is truthful, accurate, reliable, and complete.
- Restore productive congressional oversight. The next attorney general must restore respectful, collaborative relationships with the committees that oversee the DOJ’s work.
- Adopt better goals and metrics. The DOJ should employ a more useful and informative suite of performance metrics for attorneys and agents alike that focus not on raw outputs—numbers of arrests, for example—but on outcomes such as reducing crime or mitigating threats.
- Respect the professionalism of career staff and ensure a diverse workforce. The next attorney general should launch an initiative to support career staff, vigorously defend career employees against unfair attacks whether from the president or anyone else, and help the public understand the critical and essential work that career employees are doing on the country’s behalf.
- Finally, and most importantly, institute real checks and balances and accountability, which is sorely lacking throughout government. Our government—like most others—does a poor job of policing itself. We need a DOJ that would take complaints against its agents seriously and actually do something about those that have merit, such as punishing the offenders swiftly and severely.
Etched above one of the entrances to Main Justice is the inscription, “The place of justice is a hallowed place.” These words from English philosopher Francis Bacon not only mark the walls of the DOJ, but describe agency itself. It is the DOJ, after all, that is charged with safeguarding the rule of law essential to the United States’ constitutional democracy and protecting and defending the civil rights and civil liberties that define Americans.
The DOJ’s critical mission remains unchanged, and its workforce must refocus on its dedication to that mission. The DOJ faces serious challenges, and the current and future attorney generals must confront them head-on. The recommendations contained herein, while surely far from exhaustive, provide a start. They are a guide to the sorts of concrete steps the attorney general can take on day one—and without the need for legislation—to repair, rebuild, and restore justice at the DOJ.
Sadly, in the fairly recent past, the DOJ has become the DOI (Department of Injustice), which is what Tom Scott accurately calls it verbally and in all his court pleadings. Changes are urgently needed to restore it to what it once was years ago. In a future post, we will elaborate on the misconduct of and crimes committed by some of its personnel that has thus far gone unacknowledged and unpunished.