Now seems like a fine time to revisit a blistering piece by former Solicitor General Theodore Olson in the September 2000 American Spectator. Sadly no copy is available online, formatting is mine.
The [DOJ] and its officials traditionally have been held to a standard of independence and non-partisanship not expected at other federal agencies. While the president has the prerogative to set broad law enforcement policies, and occasionally to participate directly in those DOJ decisions that influence the nation’s direction and priorities, the president must never interject his personal or partisan political impulses into individual DOJ decisions. And it is one of the most important responsibilities of the attorney general to insist that the line between national policy and personal advantage never be crossed. Whenever that barrier has been breached in the past, whenever politics has permeated the decision-making or the atmosphere at the Department of Justice, as occurred in Watergate, the consequences for the nation have been grave.
How grave, you might wonder. Really grave:
[…] Attorneys general are judged in substantial part by the quality and integrity of their subordinates, and by their insistence that they be selected on their merit and for their commitment to the rule of law.
Janet Reno failed this test and succumbed to political pressures before the ink was dry on her appointment. Only days after she took office, she ordered the removal of all 93 of the nation’s United States attorneys. In order to maintain continuity in thousands of pending prosecutions, and as a statement to the public that elections do not influence routine law enforcement, the nation’s top prosecutors are traditionally replaced only after their successors have been located, appointed and confirmed by the Senate. On instructions from the White House, (she claimed it was a “joint” decision; no one believes that) Reno ordered all 93 to leave in ten days.
There could not have been a clearer signal that the Clinton campaign war room had taken over law enforcement in America. And few observers missed the point that Reno’s house cleaning served the important ancillary objective of removing the incumbent U.S. attorney in Little Rock, the location of so many Clinton family skeletons bursting to get out of their respective closets. Janet Reno filled that particular post with a former Bill Clinton student, someone who had worked in every one of his gubernatorial campaigns and the Clinton-Gore 1992 election effort.
That’s pretty grave. Oh wait, I got that wrong. The Clinton fired 93 prosecutors! indictment actually leaks like a sieve. Olson continues with the usual list of offenses, none of which the Bush DOJ has yet transformed into an indictment. Either Olson’s outrage has no basis in fact or somebdy other than liberals ought to feel pretty steamed at the DOJ’s incompetence.
[…] [T]hese events, and a long litany of others, combine to tell a story of a Department of Justice that was captured in early 1993 and has been directed by an intensely political and single-mindedly partisan White House. And an attorney general who has not only turned a blind eye to lawlessness in government, but who seems utterly unable to prevent the Department of Justice from being used to accomplish political ends. […] Unfortunately, this is only a part of Reno’s sad legacy. It will take a strong and principled attorney general and determined efforts to root out the contamination that has occurred and restore the Justice Department to the vital and proud position in government which it once occupied.
Without a doubt the quoted piece by Ted Olson speaks for the bulk of rightwing voices during the Clinton administration. Ann Coulter, constitutional scholar, appeared daily on FOX and CNN to lament Janet Reno’s slavish ties to Clinton. Lucianne Goldberg’s site, the Weekly Standard and every other outlet of Respectable Conservatism took it as established fact that political interference from the Clinton White House had reached unacceptable, Republic-threatening levels.
Having established that conservatism and the bedrock principles laid out in the Federalist Papers are really one and the same, I wonder how Ted Olson and allied conservatives would respond to developments like this.
Attorney General Alberto Gonzales signed a highly confidential order in March 2006 delegating to two of his top aides — who have since resigned because of their central roles in the firings of eight U.S. attorneys — extraordinary authority over the hiring and firing of most non-civil-service employees of the Justice Department. A copy of the order and other Justice Department records related to the conception and implementation of the order were provided to National Journal.
In the order, Gonzales delegated to his then-chief of staff, D. Kyle Sampson, and his White House liaison “the authority, with the approval of the Attorney General, to take final action in matters pertaining to the appointment, employment, pay, separation, and general administration” of virtually all non-civil-service employees of the Justice Department, including all of the department’s political appointees who do not require Senate confirmation. Monica Goodling became White House liaison in April 2006, the month after Gonzales signed the order.
The existence of the order suggests that a broad effort was under way by the White House to place politically and ideologically loyal appointees throughout the Justice Department, not just at the U.S.-attorney level. Department records show that the personnel authority was delegated to the two aides at about the same time they were working with the White House in planning the firings of a dozen U.S. attorneys, eight of whom were, in fact, later dismissed.
Gonzales literally signed an order handing responsibility for key DOJ decisions to the political arm of the White House. It seems hard to imagine a more flagrant violation of the American Spectator principle of DOJ independence.
For what it’s worth, the curious fact that Gonsales’s decision and its attendant documents never made it into the DOJ’s “thorough, comprehensive” document disclosures has caused Pat Leahy to politely question the DOJ’s good faith.
Ted Olson once wrote, the president must never interject his personal or partisan political impulses into individual DOJ decisions and conservatives everywhere nodded their heads. In the unimaginable circumstance that a Republican president would violate these priciples in the most flagrant way possible, that leaves loyal conservatives with no choice but…what? Political suicide? Movement leaders remember that shunning Nixon didn’t save the Republicans after Watergate. the only way the movement stays alive now is to stand by the president and hope to weather it out (risking a historic, epic flameout), or go back in time and nominate McCain instead. The other choices all involve wilderness.
Sharper minds already recognize that choosing the movement at this point represents a false choice, like choosing to keep a gangrenous leg. The more conservatives prop up the president’s wing of the GOP the harder it will become to separate his stink from the party brand. Sometimes, when you least expect it, circumstances call for a little creative destruction.
Apologies to all of the Ted Olsens out there, who as far as I know did not write amusingly foot-shooting pieces for the American Spectator. The text has been edited to correctly identify the former Solicitor General.