The independence of the Justice Department

By Jim Wagner

Nothing was quite so unimportant to the founders of this nation as the independence of the Department of Justice. If I close my eyes, I can almost see the determined set of James Madison's jaw as he etches into the stone of our Constitution those memorable words which embodied what he called his passionate "regard for the cherished independence of the Justice Department, which is responsible for conducting investigations without the influence or opinion of the White House." In the same way, I can imagine how the veins must have throbbed on Alexander Hamilton's temples as he declared in the Federalist Papers his own deeply held view: "There has to be a wall between political operatives in the White House and investigators at Justice. History has shown us that when that wall is too low, that's when Justice Departments get in trouble."

Try it! With a little imagination you too can visualize such momentous pronouncements from those who gave us our national independence. Conjure George Washington at his farewell address! Try to visualize his grave countenance as he warns that the nation he helped to found is "seeing an erosion of the independence of the Justice Department!" His lips must have trembled as he concluded, with a somber glance at the gathered patriots of '76, that such a development "is gravely concerning."

But as you may have guessed, none of the preceding quotations comes from our founders. The first was from Eric Tucker in the LA Times, Nov. 24, 2016, "Why the Justice Department Operates Free of White House Sway." The second was taken from Obama Attorney General Eric Holder, as interviewed by Carrie Johnson on NPR, Oct 26, 2017, "Is the White House Encroaching on DOJ Independence?" (General Holder, you may recall, was cited for contempt of Congress for his refusal to provide documents which had been demanded by the Congress under its oversight authority.) The final quote came from California Rep. Adam Schiff to CNN's Suzanne Malveaux, as reported by Veronica Stracqualursi May 22, 2018. Representative Schiff is currently leading the charge to get the Justice Department to indict the current president for "Russia collusion," notwithstanding that a sitting president cannot be indicted but must be impeached. Schiff wants the Justice Department to be scrupulously independent, except from himself.

The point is that I could show you scores of additional quotes just like these, all recently penned in the so-called mainstream press. I did not have to search for them. I merely selected the first three that appeared on Google. But I defy you to show me any such proclamations during the period when Barack Obama was president. Back in those days liberals were thrilled to see the president exerting his power over every department in the executive branch, and most especially over the Department of Justice, to which he authorized that famous "prosecutorial discretion" which is only a shameless euphemism for selective prosecution.

It is only now, under President Trump, that those on the left have suddenly become so infatuated with the notion of an independent Justice Department. But as a matter of historical fact, the Department of Justice was never intended to be independent. How can I be so certain of this? Because such a department was never contemplated by our founders in any of their writings or speeches, and it is nowhere mentioned in our Constitution. But what if it had been? You can rest assured that it would not have been "independent" of those who created it. Having survived a tyrannous king who smothered his colonists with meddling officials who "ate out their substance," our founding fathers were not about to vest such power in their own unelected bureaucrats. The powers they delegated at the Constitutional Convention were limited, and they were allotted grudgingly to leaders entirely subject to election.

Our Justice Department, when it was finally created, was made a part of the executive branch of our government, and the Constitution is rather succinct in its designation of executive authority: "The executive power (all of it, I should like to point out) shall be vested in a President of the United States of America." The president has absolute control over the entire Executive Department, including the Justice Department, and has had such power since before that Department was created.

Those of us who follow these things are deeply conscious of the animus the left once held toward our Justice Department, and in particular towards the FBI and the CIA. At one time it was liberals who most fervently insisted upon strict political control of all Federal law enforcement and espionage agencies. But today's Progressives in the Democratic Party and the Press, coincidental with the election of Donald Trump, have suddenly discovered a deep and burning love for the Department of Justice and a reverential longing that it should be independent of the President.

But why this sudden infatuation on the part of the left with the DOJ and its supposed power to act independently of both the president and the congress? And come to think of it, why is it that the same modern liberals who have proven so eager to tear down the statues of Confederate military heroes, dead and gone for the better part of two centuries, now seem equally determined to impose upon us the legal institutions of that same Confederacy? The Department of Justice, you see, is a peculiarly Southern institution, a product of the Confederacy itself. It was the pro-slavery Democrat and former senator from Mississippi and former Secretary of War Jefferson Davis, President of the Confederate States of America, who first presided over a Department of Justice on American soil. That was in February of 1861. The South, one might speculate, required a strong arm of law enforcement to pursue its runaway slaves, because at that time the Dred Scott decision was still law.

But the real United States, that nation that outlawed slavery once and for all and turned former slaves into citizens, did not see a need for a Department of Justice until July of 1780, long after the Civil War. And what was that need? Under President Ulysses Grant the nation "conceived in liberty and dedicated to the proposition that all men are created equal," was in the midst of a difficult Reconstruction, and despite the South's unconditional surrender there was extensive violence and turmoil in the recently readmitted plantation states. To counteract this dangerous development Grant immediately directed his newly created Department of Justice to suppress the activities of an emergent and increasingly powerful terror organization, the Ku Klux Klan. By 1871 there were 3,000 indictments of Klan members, with some 600 convictions, and Klan violence had been greatly reduced. What is more, according to then Attorney General Amos Akerman, it was President Grant's strong and able direction of the Justice Department that brought this about. I trust that today's Progressives have no objection to Grant's heavy-handed meddling in his Department of Justice.

However in some cases, particularly in South Carolina, civil law enforcement against the Klan proved inadequate. Accordingly, in 1871 Republican President Grant asked Congress to pass what has become known as the Klan Act, designed to protect the voting rights of newly freed slaves in such areas. Under that act, and the companion "Force Act" which was passed along with it, the power of the president was extended to include the use of federal troops to enforce the law in cases where the power of the nascent Justice Department was not adequate to the task. Klansmen were prosecuted in federal court, by juries composed largely of freed Blacks, with high rates of conviction. In some regions the right of habeas corpus was suspended. These extended powers, going well beyond control of the Justice Department, were so effective that the Klan practically ceased to exist throughout the former Confederacy, and did not emerge again for nearly half a century. As a result, implementation of the Klan Act fell into disuse. To my knowledge, no Progressives have ever objected to the broad powers that were extended to President Grant to enforce civil rights. Yet those powers went far beyond his Constitutional authority to manage the Justice Department.

It took 50 years of statutory amendments to make our Department of Justice as powerful and ubiquitous as that of the former Confederate States. The statutory act which established the US Department of Justice instituted the prosecution of federal crimes under United States Attorneys, a power previously reserved to the states except in those relatively infrequent cases where private attorneys were contracted for this duty by what was then a part-time attorney general. That statute also established the office of Solicitor General to represent the United States before the Supreme Court. With the passage of the Interstate Commerce Act in 1887, the federal government acquired additional jurisdiction in the area of crime control, and the Department of Justice was assigned corresponding additional law enforcement duties.

But it was not until 1933, under President Franklin Roosevelt, that the Department of Justice acquired wholesale powers to prosecute cases in the courts of the United States for offenses committed against the Government of the United States. A that time the authority of the department was also extended to the supervision of US Marshalls, attorneys and clerks, an authority previously under the jurisdiction of other agencies. And incidentally, President Roosevelt assigned these additional powers to the Justice Department by executive order, not exactly the sort of hands-off approach liberals now demand for their "independent" Department of Justice. There was no Constitutional provision for these new powers, nor even a new statutory enactment by Congress. The president most loved by Progressives simply assigned these new powers by fiat. Was he tampering with the independence of the Justice Department? Was he obstructing justice? Of course not! He was acting within his Constitutional authority. And Progressives back then led the cheering.

Fast forward to the Kennedy era, and you will discover that the man who ran John F. Kennedy's presidential campaign in 1960 subsequently became his attorney general. (Prior to that this same man had worked as an assistant to Joseph McCarthy in the Senator's subsequently disgraced effort to purge Communists from the government.) That man was the president's brother, Robert F. Kennedy, and he served as a close advisor to the president throughout his tragically shortened term of office.

At first RFK was ambivalent about the Civil Rights Movement. For instance, he warned Martin Luther King Jr. to terminate certain employees suspected of being Communists (i.e. suspected of colluding with Russians), and he authorized a wiretap of King and other civil rights leaders. However experience in office led him to a new understanding of racial injustice in the South, and he eventually became a foremost advocate of civil rights. According to Wikipedia, President John F. Kennedy "came to share his brother's sense of urgency on the matter...to such an extent that it was at the attorney general's (that is, RFK's) insistence that he made his famous June 1963 address to the nation on civil rights."

If this were a sentence, we might diagram it as follows: RFK runs JFK's presidential campaign; JFK rewards RFK by appointing him head of the Department of Justice; RFK then develops strong views on the question of civil rights; and ultimately RFK persuades JFK to adopt those views. Does that sound to you like the sort of "independence" liberals today are demanding for the Department of Justice? And yet in those days the left was thrilled with Camelot and had no objection to the incestuous relationship between the president and the head of his Justice Department.

In summary, the Department of Justice was a creation of Congress, and so by both law and logic falls under the Congress's supervisory authority. This means that the Congress not only has the power to oversee the conduct of the Justice Department but could, at its sole discretion, cut the funding of that Department or even abolish it entirely. Furthermore, since Congress expressly established the Justice Department under the Executive branch of our government, the president has plenary power over it as FDR amply demonstrated. He is free to direct it or constrain it as he sees fit, subject only to the approval of the electorate.

The idea that a permanent unelected bureaucracy not answerable to the people could have independence from and thereby practical superiority over the elected representatives of the people is as abhorrent to the Constitution as it is to common sense. If we elect bad representatives, we can easily replace them at the ballot box. If we elect a bad president? No problem. He must run for offense again in four years. But what if a cabal of bureaucrats in the Justice Department were to decide that they are smarter, or more wise, or simply better than the Constitutional representatives established to oversee them? How would we as a people stop them? How would we get rid of them? I'm not sure we could.

Of course many at any given moment might be happy with the policies of such a cabal, and might even encourage it. That is in fact the case today with most Democrats, most media, and an alarmingly vast number of career "public servants," particularly in the FBI. But that is a short-sighted view. Once having consolidated power, the creatures of the swamp will not long answer to any faction whose interests do not precisely coincide with their own. To paraphrase Ben Franklin, the deep state, like fire, makes an advantageous servant but a fearful master.

© Jim Wagner