The Volokh Conspiracy

Warm up the slime machine. After all to get ahead in this Justice Department (an oxymoron since 2005) seems to be tightly coupled to being a member of the Federalist Society. Like some of the people Metcalf talks about

Third, and most significantly for present purposes, there was an almost immediate influx of young political aides beginning in the first half of 2005 (e.g., counsels to the AG, associate deputy attorneys general, deputy associate attorneys general, and deputy assistant attorneys general) whose inexperience in the processes of government was surpassed only by their evident disdain for it.

Interesting that you found First and Second, but not Third.

Metcalf has served since 1971 in the Justice Department, 30 as an att. Twelve years in Democratic administrations 22 in Republican, but since he thinks that Gonzales and Co. are destroying the place, he MUST be a dem. Right.

"Metcalfe calls himself "a purposely nonpartisan registered independent," but his political sympathies are clear."

Ummm, how exactly are his political sympathies clear? I read the article (albeit quickly) and all I saw was a career DOJ attorney lamenting the politicization of Justice. I don't see how a non-partisan critique of the AG becomes partisan merely because the AG is a Republican. I know that the post nonetheless says we should take Metcalfe's assertions seriously, but as an anti-ideologue, I find it disheartening when any criticism of a Republican is construed as liberal partisanship and any criticism of a Democrat is conservative partisanship.

Prof. Adler,

I am heartend by the fact that this gives you pause. While I, unlike most left-leaning readers, think the 'federalist' column is something of a red-herring (the federalist society is but a proxy in law school for Republicans at this point, and I can understand why a Republican administration would like to have federalists) the overall incompetence and illegality of what AG AG has done is both breathtaking and unprecedented in our recent history.

IMHO, this story is the most important one to follow, and serves as a proxy for the blatant politicization of things that we, as believers in a republican (small r) form of government, feel should not be subject to the whims and dictates of whomever happens to hold the current Presidency.

I just worry- how long will it take to undo the damage that has been done? Or, worse yet, now that these norms have beeen established, can we expect the next administration to follow them?

Would someone explain why the Justice Department should be less politicized than, say, the Treasury or Commerce Departments?

Shouldn't ANY administration be entitled to determine its priorties with regard to law enforcement and pursue them? And shouldn't it be entitled to replacce DOJ political appointees who are not enthusiastic supporters of the program?

loki13 wrote:
"the overall incompetence and illegality of what AG AG has done is both breathtaking and unprecedented in our recent history."
"I just worry- how long will it take to undo the damage that has been done? Or, worse yet, now that these norms have beeen established, can we expect the next administration to follow them?"

Uh, and the 93 replaced by Clinton, including the one in Arkansas who was investigating him, was pure and holy, how? He did not wait for one single ag's term to expire, as was precedent.
Was Sen. Feinstein carrying water for Republicans when she put in writing her complaints about the ag in California?

And Reno was so great? You have got to be kidding.

Similarly, if that supposed Republican were to supplement his criticisms of the President by pointing out that he identifies himself as a Republican, that would really only go to show that they're probably not really a Republican. It's obvious really.

Would someone explain why the Justice Department should be less politicized than, say, the Treasury or Commerce Departments?

Because the Treasury and Commerce Departments cannot put people in prison.

Last attempt for those who still don't get the outrage...

This is a hypo- imagine Al Gore (you'd call him Algore) won the electoral vote in 2000. Now, in 2007, you found out that Algore's best buddy, a real estate lawyer from Tennessee he appointed AG had done the following:

1. Fired a selected bunch of AGs midterm (unprecedented).
2. Put in inexperienced political hacks as their replacements so that they could have something nice &shiny on their resumes.
3. Those individuals wouldn't have gotten Senate approval, but it's no longer needed, thanks to a mysterious provision of the Patriot Act no one was aware of.
4. Evidence comes out that the people that were fired either were investigating Democrats too well or had failed to bring concocted charges against Republicans.
5. USAs that managed to save their jobs did so by bringing last-minute, pre-election charges (normally a DOJ no-no) against Republicans in swing states.
6. Place all of this in a backdrop where we're learning that other branches of government (GSA) get regular pep-talks about how to help Democratic candidates in swing states. Sorry, 'our candidates' in swing states.

....now, would you feel a little queasy? I would. Because that's not a Democrat thing. Or a Republican thing. It's an American thing. Country first, party second. But instead we're finding that the K Street project was simply extended into the executive branch.

Whether you believe government is good or bad, should be large or small, I think we should all agree that government should not serve one party (one party's priorties and policies, yes, but not one party). If this behavior becomes normed, then when the next administration comes in, and it's a Democratic administration, then there will be selective targeting of Republican candidates.

And justice (or Justice) is not supposed to be about that.

Ah yes the clearly partisan Metcalf.

You have to remember that this is a Cabinet department that, for good reason, prides itself on the high-quality administration of justice, regardless of who is in the White House. Ever since the Watergate era, when Edward Levi came in as attorney general to replace former Sen. William Saxby soon after Nixon resigned, the Justice Department maintained a healthy distance between it and what could be called the raw political concerns that are properly within the White House's domain. Even Reagan's first attorney general, William French Smith, did not depart greatly from the standard that Levi set; as for Meese, I knew him to be more heavily involved in defending himself from multiple ethics investigations than in bringing the department too close to the White House, even though he came from there.

More recently, of course, the DOJ-White House distance hit its all-time high-water mark under Janet Reno, especially during Clinton's second term. And even John Ashcroft made it clear to all department employees that, among other things, he held that traditional distance in proper reverence;

The alternative to trying to paint Metcalf as a partisan is to admit that this administration has shattered the reputation the DOJ, and that the only way to recover it may be to professionalize the US Attny position. A system that worked reasonably well for over 200 years destroyed and replaced by a less flexible, more bureaucratic system. Oh how Antoine would hate that

But how similar to smearing anyone who tells the truth about this administration and its policies. Or maybe you simply don't like people whose last name begins with M. How Stalinist/Libertarian. The worst of all possible worlds.

Rabett --

I think you can dispense with the strawmen. No one called Metcalfe a "partisan." My post and comment merely said that he -- like most folks -- has political sympathies. I then stressed that this was not a basis to discount his critique because of its substance, and that even the most partisan Republican would have reason for concern.

JHA

My reaction to hearing that District Attorneys are rarely fired (or even not reappointed--- how many in the current affair were actually fired rather than just not given a second term?) is to see the *lack* of firings as an example of government misbehavior. If you hire 100 people for an 8-year job, most of them from parts of the country your office doesn't have personal knowledge about, how likely is it that all of them are the best for the job? I'd expect some of them to turn out to be disappointments who should be fired. I expect the only reason firings aren't more common is pure politics: it looks bad to fire someone, because then the opposition will accuse you of hiring incompetents, whereas if you retain an incompetent, nobody minds.

Not all the current firings were for incompetence, of course, but apparently all but one were disappointments in one way or another. And even if someone is competent, isn't it ok to replace him with someone better?

Nothing in Metcalfe's doomsday interview, if true, would give me any pause even with Al Gore or Obama or HRC in the White House. It is just the president actually trying to exercise the power the Constitution gives him.

Actually, the appointment of U.S. Attorneys is something Congress gave to the President, not the Constitution. What Congress giveth, Congress can take away...

Would someone explain why the Justice Department should be less politicized than, say, the Treasury or Commerce Departments?

Something about that question suggests to me that no explanation could possibly suffice.

It is not the appointment power I meant, it is the right to control the core executive power of prosecutions. Per the Constiution, Congress "may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments". Congress cannot prevent the President from controlling the activities of those inferior officers.

But that power is not completely unincumbered. The President cannot order his inferior officers to select and prosecute cases on the basis of a target's creed or color. Similarly, systemically targeting members of an opposition party or protecting political allies would constitute a violation of civil rights and possibly the 1st Amendment.

These "trackbacks" are truly amazing: I do know a good deal about the federal government, and about the Justice Department in particular, but as my grown children would say, "Welcome to the blogosphere, Dad!"