theodore M I R A L D I mpa ... editor, publisher, writer

Monday, December 26, 2016

MUCKING OUT the Justice Department

A hard slog ahead for Jeff Sessions


Of Donald Trump’s most prominent allies in the presidential campaign, Jeff Sessions is the last one standing. Newt Gingrich is an outside adviser to Trump and occasional critic. Chris Christie works full-time as governor of New Jersey. Rudy Giuliani didn't get the position he wanted—secretary of state—and turned down several he didn't want.
Sessions, as Trump's choice for attorney general, has the job of draining the swamp at the Department of Justice and making DoJ great again. It's going to be a grueling job with many facets. The good news is that Sessions, a former U.S. attorney and Alabama attorney general before he was elected to the Senate in 1996, is familiar with all of them.
Rolling back the excesses of Justice under his predecessors Eric Holder and Loretta Lynch should start immediately. Extreme positions in cases in federal court will need to be changed. One example: defense of the "guidance" letters that propound a radical notion of transgender rights.
The "Ferguson effect" that has weakened law enforcement ever since the August 2014 rioting in the Missouri town should be confronted. President Obama and Holder exacerbated it by putting police officers under a constant threat of federal investigation and second-guessing of their conduct.
Selective enforcement of the law—actually nonenforcement—began early in the Obama administration when Justice declined to prosecute armed members of the New Black Panthers who had intimidated voters in Philadelphia in the 2008 presidential election. Since then, immigration rules, the Defense of Marriage Act, and the federal requirement to maintain the accuracy of voting rolls have gone unenforced.
And the impression that powerful people are above the law was heightened. Obama played a role by intervening when his friend, Harvard professor Skip Gates, was arrested while struggling to open the front door of his house. Bob Dylan's notion that the ladder of law has no top and no bottom was disproved in the Obama years.
Grassroots conservatives—the non-violent Tea Party patriots—were at the bottom. Justice officials colluded with the IRS against these nonprofit, nonpartisan groups who sought tax-exempt status. They schemed to thwart these groups, even prosecute them, as subpoenaed documents later revealed.
Bankers involved in the economic collapse in 2008 got kinder treatment. They were "too big to jail." But with the threat of jail hovering in their minds, they agreed to fork over billions in fines. There's a name for this: extortion. The money was often donated to liberal and left-wing groups—in effect, subsidizing them.
As President Reagan's attorney general, Edwin Meese gave a series of speeches in the mid-1980s on the Constitution, its interpretation, and the structure of government. That subject may sound boring, but his talks created what Obama likes to call "a teachable moment." Worried liberals, including Supreme Court Justice William Brennan, chimed in.
A similar moment is summoning Sessions. Speeches on the uses and abuses of federal power could spark a national discussion, focusing in part on Obama's stretching of Washington's authority to the breaking point. Avoiding partisan overtones, while tricky, would be necessary.
And it touches on the role of the attorney general as a leader. Holder concentrated heavily on race and complained that whites were reluctant to join his dialogue. Indeed, they were. They feared being falsely called racist. Lynch was merely weak. Paralyzed by the Hillary Clinton case, she let FBI director James Comey take a public role in deciding whether to prosecute.
Sessions can lead by being independent (relatively), which is what he's been as a senator for two decades. Serious speeches will help. Ordering Comey to be quiet will, too. More than any other cabinet member, the attorney general is obliged to inform the president when he's wrong, as he may often be. Holder, Lynch, and the entire Justice Department failed on that count with Obama.
Now for the hardest part: reforming the civil rights division, the office of legal counsel, and the solicitor general's office. The first two are heavily staffed by left-wing ideologues who have burrowed into civil service jobs. Firing them may not be possible.
As everyone in Washington knows, the civil rights staff has run amok for the past eight years. It has elevated "disparate impact" to a high principle that frees the government from having to prove actual racial discrimination. Sessions can flip that to require acts of bias, but he may face a revolt. Or at least a lot of leaks.
It doesn't get easier. The division led the attack on the Baltimore police force, claiming in a 2016 report that it conducts unlawful stops and uses excessive force. Around that time, three Baltimore officers were acquitted in the Freddie Gray case and charges against three others were dropped. Meanwhile, Vanita Gupta's authority as acting head of the division expired more than a year and a half ago. Her actions may be challenged in court, creating still another mess.
The office of legal counsel was once DoJ's crown jewel, known for its integrity and professionalism. Its job was to determine if proposed policies, particularly the president's, meet constitutional standards. Under Obama, it stamped its approval on anything he wanted to do, including recess appointments when there wasn't a congressional recess. The Supreme Court struck that down, 9-0.
The solicitor general's office should never have appealed that case. Its lawyers are top notch and surely knew better. They are an elite crew who decide the position the government will take in federal appeals courts. This gives them an enormous impact on public policy.
Under Obama, they've staked out extreme positions. They insisted ministers were subject to employment-discrimination laws, their religious strictures notwithstanding. The solicitor said property owners have no right to challenge a government order to stop building their home. Given such cases, it's not surprising Obama's solicitor won only 45 percent of his cases. Over the prior 50 years, solicitor generals prevailed at a 60 percent rate.

Sessions, assuming he's confirmed, has his work cut out for him. To succeed, he'll have to be tough, thick-skinned, and at times belligerent. On those traits, Sessions is three for three.

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