Justice's Past May Be Its Future

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

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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.

[cperrym]

Bookworm 314 is right on the money. The remaining U.S. Attorneys are the ones to be intimidated. What cases or situations is this administration trying to influence? Is someone contacting all of the Attorneys to see if they will admit to being pressured? Let us leave Gonzo in place if we can. He is a little stupid and we can keep up with him.Let hin be Bush's problem

[bookwerm314]

MISDIRECTION!!
You are looking at the wrong thing.
DON'T worry about the ones that WERE canned, Worry about the ones that were NOT canned.

That means that many of the ones STILL ON THE JOB did respond to political pressure, at least enough to keep them off the hit list.

I have contacted my senator and congressman (I ONLY have ONE senator as the other is Allard who is a weasel) to push them to investigate all the US Attorneys who did NOT lose their jobs!

THAT is where we will find paydirt. There will be signs of Republican pressure, with phone calls that were NOT cut short curtly, but instead accepted and listened to.

[annabanana-1]

"Bells Rule" is a good first start. Using the DOJ as a political "enforcer" is way out of line. Allegience to the rule of law MUST trump allegience to any particular party or politician.

[Syndicate]

The only problem I have with the feds is there indifferance to the voters of California.

[jairod]

The problems the admisistration has with the JD started with that C- student bragging that he has PHDs working for him. It is because his daddy paid off the Deans at Yale that Mr. Presi-can't through it regardless of Yales high standards. Now, we the People have to suffer through the pile of dung he is leaving behind. Gonzales is just another sypmtom of a corrupt administration that began with stealing, cheating, and lying. Now, six+ years later even the Repulicants are seeing what a mistake they made. Alas, too late for the Country embroiled in an illegal war , killing innocent boys and girls, and destroying families hopes and dreams. Thank you Mr. Bush-league for the nightmares we will have to go through before we can regain a level of normalcy in the American way of life.

[adian1-2009]

I can't see why the administraion keeps itself entangled in this embrolio. It is pure and simple. Gonzales has caused great injury to the people of the US by lowering the reputation of the DofJ to the lowest conceivable level. He has shown that he is not up to his job. His honesty and truthfulness are gone. That we do not need in our government. THEN, THERE ARE PLENTY OF GOOD MEN AND WOMEN IN THE REPUBLICAN PARTY than can undertake the job, restore what Gonzales has trashed and do right what has been done wrong. Well, why is Gonzales not fired and replaced the right way? That such a move will not stop investigations and that there could be some political loss to Republicans? Yes. But as soon as the right person becomes Attorney General, things will portray a better future for all of us, the Republican Party included.

[imprisonbush]

As some of alluded to, the source of the problems created by AG Gonzales is of course none other than the Bush Administration. Whether he will nominate a AG who has credibility and integrity is doubtful. His Administration is full of political, partisan hacks who are nothing more than yes men/women who want to strike it rich and retire. Powell had integrity and credibility but lost such and went down in flames hanging around these fools too much and too long. In his entire Administration, the only person left standing with integrity and credibility is Gates, but he has just started his job and has time left to fall on his face. He has yet to be truly tested and -- but for the short tenure remaining for this pack of criminal hacks -- he would be unlikely to survive the end of its term, having to swim with such dishonest ****** and thugs. Bush could hit a home run here if he were to nominate Patrick Fitzgerald to be the next AG. This would immediately restore integrity and credibility to the Justice Department. But Bush will never do this because it would also ensure that Rove and much of the Administration would be criminally prosecuted for their numerous acts of perjury, obstruction and other offenses.

[egresor]

you're right clemenhagen1

"They slide a provision into the PATRIOT ACT, which itself got ramrodded through Congress without oversight due to the hysteria of the Post 9-11 era. They now remove appointees, replace them with cronies, and subjugate the constitution by bypassing the constitutionally required "advice and consent" rule. Lovely to see our constitution so deceitfully underminded, isn't fellow patriots?"

isn't it amazing what our lawmakers give up of our freedoms and protections so easily? all out of fear of publically being painted un-patriotic by the bush people? oh---think bush and company would have problems questioning someone's patriotism if they disagreed with them? better check with those who have in the past.

if it were only congress itself? then they would deserve having bush hijack control from them. for not doing their jobs and following the laws, but unfortunately those freedoms and accountabilities are being taken from us and not just congress.

gonzales was a yes man from the beginning. that's why bush chose him. he knew gonzales would perform as bush wanted him to and people are now outraged at such political behaviors from him? why is it that people could not see what bush and his cronies were from the start? they cynically used 9-11 and people's fears to get their agenda's enacted. now that they have them we all can see them for what they were. isn't hind sight wonderful? but now how about some foresight?

[nerfff-2009]

Andrew Cohen needs a lesson on the American judicial system. Prosecutors are NOT NEUTRAL. A federal prosecutor is on the side of the STATE. THE JUDGE AND JURY ARE THE ONLY PARTIES THAT HAVE AN OBLIGATION OF NEUTRALITY. When Mr. Cohen says the public has lost faith in the Justice Department, he is talking out of his @ss. There is no public poll saying anything of the kind. The public has not lost faith in the Justice Department. I, for one, am happy those little *** got fired.

[jebby_one]

ha haaa .. anyone remember Janet Reno?

For a while I forgot that she was actually Attorney General rather than Bill Clinton's great protector :)