Justice's Past May Be Its Future

Attorney General Alberto Gonzales is sworn in on Capitol Hill in Washington, Thursday, Jan. 18, 2007 prior to testifying before the Senate Judiciary Committee. AP Photo

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.


What do you get when you talk to a former Clinton official and a former Reagan official about the scandal surrounding federal prosecutors? Surprise! You get bipartisan agreement on what the next Attorney General needs to do, and needs to be, to begin to restore to the Justice Department the lost morale, credibility and independence resulting from the disappointing tenure of Alberto R. Gonzales.

A rather comforting political and legal consensus is emerging among old-guard regulars in Washington and elsewhere now that they are allowing themselves to talk publicly about the world of the Justice Department, A.G. (After Gonzales). No one is naïve enough to wish for an attorney general who is not attuned to the political desires of his or her boss. But Wise Men in both parties say there are ways to ensure that this sort of mess doesn't occur again anytime soon.

"They ought to re-establish rules that Griffin Bell established to ensure the independence of prosecutors," says Phillip B. Heymann, former deputy attorney general during part of the Clinton administration. Bell, President Carter's attorney general for a few years, is widely credited with helping restore the Justice Department's stature following the Watergate debacle. "Bell's rule," Heymann told me last week, "is that no member of Congress or the White House could contact a federal prosecutor."

Agreed, says Bruce Fein, former associate deputy attorney general during the Reagan administration. Whomever the next attorney general is, Fein said last week, he or she should immediately "issue a memorandum to the Congress and to the White House" informing both "that any gripes about prosecutors they may have should be funneled through the Attorney General and not through the prosecutors themselves." Fein also wants the next head of the Justice Department to remind U.S. attorneys that they must immediately report any improper conduct or pressure brought by members of Congress or executive branch officials.

The renewed presence or enforcement of "Bell's Rule" no doubt might have made life easier for David Iglesias, one of the eight federal prosecutors fired last December by the White House and Justice Department. Bush-appointee Iglesias told the Senate Judiciary Committee earlier this month that two federal lawmakers from his home state of New Mexico "called him to ask whether indictments would be filed before the November election against Democratic politicians in an ongoing criminal investigation," the Washington Post reports. When Iglesias refused to respond to the pressure, and refused to indict, he was fired.

"Bell's Rule" is just one of several practical and symbolic steps the next attorney general must take, these folks say, to restore the public's faith that the Justice Department first allegiance is to the neutral, professional and non-partisan application of the law. And in large part what the next attorney general will do will depend upon who the next attorney general will be. Although the names differ on potential candidates — Judge Laurence Silberman, former deputy attorney general James Comey, even special prosecutor Patrick Fitzgerald — the legal and political figures I spoke with all said, sometimes using almost the same words, that Alberto Gonzales' replacement must be his own man (or woman), in his or her own right, and not be nearly as beholden to the President as Gonzales is.

Not only that, there is also agreement upon which attorneys general, in our relatively recent past, did the best job of resuscitating the Justice Department when it was at a low ebb. In addition to Bell, the name of President Gerald R. Ford's attorney general keeps popping up. I'm guess you've never heard of him before. But on both the right and the left he gets great marks for rising above politics as attorney general and for performing the job the way most legal experts and historians (and politicians) say it ought to be performed. His name? Edward H. Levi.

Here is what former President Ford said about Levi upon the latter's death in 2000. "When I assumed the presidency in August 1974, it was essential that a new attorney general be appointed who would restore integrity and competence to the Department of Justice. Ed Levi…was a perfect choice. In his several years as attorney general, Ed Levi was non-partisan and highly qualified as the highest-ranking lawyer in the federal government."

And here is what Supreme Justice Antonin Scalia told the New York Times in its obituary of Levi. Justice Scalia, who worked in Levi's Justice Department, told the Times that as attorney general Levi "brought the department through its worst years…. It was a bad time not only because of the disgrace of Watergate, which had affected the department most deeply, but there were also problems at the F.B.I…. He brought two qualities to the job," Justice Scalia told the Times, "a rare intellectuality and a level of integrity such as there could never be any doubt about his honesty, forthrightness or truthfulness."

John Dean, former White House counsel for President Nixon during the Watergate days, mentioned Ed Levi (and Griffin Bell) to me last week when I asked him to name the best attorneys general in modern history. So did Heymann, who said Levi was particularly adept at dealing with an issue at which the current attorney general has failed miserably. Levi, Heymann told me, did a great job "of reconciling law and national security needs" in the wake of Watergate.

Levi, the Times reported in his obituary, "forced through regulations setting limits on what the [Federal Bureau of Investigation] and the Central Intelligence Agency could undertake" when engaging in domestic surveillance operations. "The FBI had been conducting domestic surveillance operations," the Times reported, "under the code name Cointelpro." Sound familiar? Compare Levi's work with the current attorney general's work. As attorney general, Gonzales defended the National Security Agency's spy program then initially refused to share with Congress the details of a compromise worked out between the White House and a spy court judge.

The present is bleak at the Justice Department. But there are echoes of past competence there that bode well for its future.

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