Above the Law: Secret Deals, Political Fixes, and Other Misadventures of the U.S. Department of Justice.
The very name "Department of Justice" is ironic, the caustic critic H. L. Mencken claimed in 1926, calling the body a "fecund source of oppression and corruption." "It is hard to recall an administration in which it was not the center of grave scandal," he reported, recommending that a realistic history be written. Seventy years later, the veteran investigative reporter, David Burnham, has taken up the challenge in Above The Law.
Burnham took on an assignment that is both overdue and difficult, for the 126-year-old Justice Department is formidable in size, scope, and complexity. Charged with the constitutional duty to see that laws are faithfully executed, the president appoints an attorney general who oversees more than 100,000 employees, including 7,000 litigating lawyers, and a $12 billion dollar department including such disparate functions as prison management, immigration management, and the F.B.I. The attorney general oversees more patronage jobs than any other Cabinet member.
The "grave scandals" noted by Mencken are due in no small part to the department's complexity--and its split loyalty to both the law itself and to the administration. Presidents traditionally have appointed political advisers to the post and have used attorneys general as private counselors in troubled times. President Andrew Jackson told his attorney general, Roger Taney, to solve a problem in the way he wanted "or I will find an attorney general who will." Of course, in running the Department of Justice, there are politics, and there are politics; there is an important distinction to be made. When I was at Justice during the Kennedy administration, we drastically cut the Internal Security Division and expanded the organized crime section to reflect the changed values of the times and the preferences of a new administration. Such shifts of policy are inevitable and proper. Soiling the administration of justice with party politics, on the other hand, by targeting opponents or forgiving allies, is intolerable. It happens, at times, but it never should.
On this subject, as with several others in an otherwise convincing and eye-opening book, Burnham is more scolding than edifying. And sometimes he over-stretches to make his point. For example, he cites an instance when some Pennsylvania politicians called Robert Kennedy about a pending organized crime investigation, and the attorney general then queried the staff members involved. Burnham calls this a case of the Kennedy administration bowing to political pressures. But in an interview for my own book, a lawyer involved in that investigation went out of his way to tell me that Robert Kennedy did not bow to political pressures; he simply wanted to be kept informed.
Burnham is correct, though, to emphasize the difficult nature of setting priorities and exercising discretion at the Department of Justice--and the flawed fashion in which that's currently done. Burnham calls enforcement of environmental laws, for example, "chaotic, slipshod." He's right. The 93 local U.S. attorney's (usually political appointees owing as much to their local party leaders as to administration officials) operate regional baronies and satrapies, and do so in an idiosyncratic fashion. These attorney's don't just execute policy--they establish it themselves. This creates what critics call an "adhocracy," which reacts to the crises of the day with department officials whose careers usually are short-lived (the average tenure of top officials is about two years). I was once told directly by Webster Hubbell, who was essentially running the Justice Department at that point, that the Clinton administration had no plans to appeal a pending case. But the case was appealed (and lost) because the department's internal momentum (career lawyers) prevailed over its present leaders.
Burnham offers useful suggestions for directing the department's vast available data into meaningful policy and performance standards. This could light the way for others to solve some of the foibles uncovered in this book.
But some of Burnham's criticisms are overly broad. He indicts all administrations with failing to enforce civil rights measures, for example. But surely some have performed better than others. Further, one wonders if the dilemmas Burnham describes could ever be handled satisfactorily. For example, he would prefer more prosecutions of white collar crimes; so would I. Citing class biases, outright political deals, poorly drafted laws, and incompetent investigators, he indicts the department for incompetent enforcement of regulatory laws. And he has powerful evidence, stories of hazardous waste, financial fraud, dangerous food and drugs, unsafe cars--each affecting vast numbers of people and each circumventing the law.
This insufficient focus on white collar, corporate crime is no accident, however. The American public is understandably, if shortsightedly, more worried about random crimes of street violence. That is why law enforcement--and the media--devote so much time and energy to this problem. Crime rates may be dropping, but they remain beyond civilized standards. The problem here is less a lack of good policies than lack of political integrity and public responsibility--neither are institutional Justice Department flaws. If the American people would press and vote for tough regulatory law enforcement, they might get it. For that to happen, the corrupting influence of money must be excluded from the elective process.
Still, much of the Justice Department's work is admirable and responsible. And Bumham shouldn't be expected to have answers to all the world's most confounding law enforcement questions. His book was not intended to be prescriptive (though he is often tempted in that direction), and it need not be to have performed a valuable service. Above The Law raises timely and important questions about the federal law enforcement system. It leaves the reader anxious to know what can be done to correct all the fundamental failings this book painstakingly highlights. That book of remedies remains to be written. Ronald Goldfarb, a Washington attorney and author, served in the Department of Justice during the Kennedy administration. His book, Perfect Villains, Imperfect Heroes: Robert F. Kennedy's War Against Organized Crime, was reviewed in the December issue.