Attorney General Must Work Without Partisanship

By:  Senator Patrick Leahy and Senator Arlen Specter

In much the same way that our financial system is suffering a crisis of confidence, our Justice Department — the flagship of our system of justice — also faces a difficult road to rebuild trust after a crisis of leadership and conscience.

The infusion of politics into the Justice Department and an abdication of responsibility by its leaders have dealt a severe blow, squandering the public’s trust in a system that is supposed to apply our laws without fear or favor.

Investigations by Congress and the DOJ’s inspector general into the U.S. attorney firing scandal and the politicized hiring of attorneys and immigration judges have substantiated some of our worst fears. We now have the corrosive situation in which defendants routinely question whether federal prosecutions are politically motivated. Great damage has been done to the credibility and effectiveness of the Justice Department.

Next week, the American people will elect either Sen. John McCain or Sen. Barack Obama as the next president. Among the new president’s earliest and most important appointments will be the selection of an attorney general to serve as the nation’s top law enforcement official. That choice is crucial if the Justice Department is to be restored to a reputation worthy of its name.

As the Democratic and Republican leaders of the Senate Judiciary Committee, we jointly offer this advice to the next president on the kind of attorney general he should appoint.

First and foremost, the next attorney general must be someone with an overarching commitment to the law and to justice. Both of us were prosecutors before we were elected to the Senate, and we understand that the rule of law and the principles of justice are larger than politics and should operate without partisanship.

A new attorney general should bring a commitment to the law that grows out of experience with legal issues important to the fundamental rights and well-being of the people of the United States. The attorney general is at the forefront in our battle to keep America safe from terrorism. That person should be someone with the knowledge and experience to help keep Americans safe and to aggressively investigate and prosecute serious crimes. Also needed is the judgment to exercise care in the use of prosecutorial and investigative powers, including the expanded powers approved since the attacks of Sept. 11. 

The attorney general leads federal efforts to enforce voting rights, civil rights, environmental protection, antitrust laws and the prohibitions against financial fraud and defrauding the taxpayers. The attorney general has the enormous responsibility of overseeing enforcement of our federal criminal laws, to ensure that those who cause harm by crossing the line into criminal conduct are held accountable for their wrongdoing.

The next president should nominate someone who understands our moral obligation to protect the fundamental rights of all Americans and to respect the human rights of all people. The attorney general must hold everyone, no matter how powerful, accountable to the law. Any nominee must have a visceral commitment to pursuing and achieving justice, and a record of doing just that.

As the past few years have made all too apparent, independence is also an indispensable quality in an attorney general. Justice James Iredell noted in 1792 that the person who serves as attorney general “is not called attorney general of the president, but attorney general of the United States.” Regrettably, we have seen what happens when an attorney general ignores this basic tenet and considers the president, not the American people, as his principal. We must ensure that the rule of law never plays second fiddle to the partisan desires of political operatives.

The attorney general’s duty is to uphold the Constitution and the rule of law, not to circumvent them. The president and the American people are best served by an attorney general who gives sound advice and takes responsible action, rather than one who develops legalistic loopholes to serve the partisan ends of a particular administration.

Finally, the attorney general must be someone who deeply appreciates and respects the work and commitment of the thousands of men and women who work in the branches and divisions of the Justice Department day in and day out, without regard to politics or ideology, doing their best to enforce the law and promote justice. They are career prosecutors, federal agents, immigration judges and many others. Their dedication and hard work are part of the foundation of the American justice system.

The tradition of excellence and impartiality among the career employees of the Justice Department extends back through many administrations, Democratic and Republican. Unfortunately, this tradition and reputation were undermined during Watergate and again recently. These values need to be reinvigorated so that the taint of political influence is exorcised.

Since his confirmation last year, Attorney General Michael Mukasey has taken some steps to address the politicization of the Justice Department. Most recently, he appointed a career prosecutor to pursue the findings of the department’s inspector general regarding the firing of U.S. attorneys. While we welcome such steps, much work still needs to be done to restore the Justice Department to its rightful posture and position.

The next president should appoint an attorney general with the experience and understanding necessary to renew the American people’s confidence in this indispensable arm of our government.

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Sen. Patrick Leahy (D-Vt.) chairs the Senate Judiciary Committee. Sen. Arlen Specter (R-Pa.) is the panel’s ranking member.