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Gonzales Leaves Vacancies, Low Morale at Justice Department

August 28, 2007 at 6:20 PM EST
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RAY SUAREZ: On September 17th, Alberto Gonzales will leave a Justice Department that already has several top-level vacancies and reportedly low morale among remaining staffers. Whoever replaces Gonzales will inherit an institution with more than 100,000 employees, including both political appointees and career attorneys.

Here to discuss where the department goes from here are two former Justice Department officials; Jamie Gorelick, she served as deputy attorney general in the Clinton administration, she’s now in private practice in Washington, D.C.; and David Rivkin, he served in the Justice Department under President Reagan and the first President Bush, he’s also a lawyer in private practice.

And, David, I thought we could begin this conversation with a working definition of what the Justice Department is supposed to do. Both in law and by two centuries of tradition, what’s it for?

DAVID RIVKIN, Former Justice Department Official: It litigates cases in various litigating divisions on behalf of the government. It formulates legal policies for the United States. It is not entirely focused on Washington; there are, of course, U.S. attorney’s offices spread throughout the country.

It is an enormously powerful and influential entity within the executive branch. It also provides legal advice to other agencies and departments. If they disagree about the meaning of a particular statute, portions of the Justice Department, like Office of Legal Counsel, that adjudicate positions and establish what is the legal norms that our agency departments are meant to comply.

It is a superb department. I feel very privileged to work there. They’re excellent career people, and morale is usually quite high.

RAY SUAREZ: Jamie Gorelick, will you sign on with that thumbnail description? And tell us what kind of shape that department will be left in on September 17th, in your view.

JAMIE GORELICK, Former U.S. Deputy Attorney General: I generally agree, Ray, with David’s description. By all reports, the morale is quite low. I think the fine career employees of the department feel buffeted by the events of the last year, particularly the last several months.

So the challenge for the new attorney general is really to lift the morale and to set the course for the department for the remainder of the president’s term. There are any number of steps that a new attorney general will want to take, but reinvigorating that sense of purpose and of the historic mission of the department is right up there.

Low morale at the Justice Dept.

RAY SUAREZ: Lift the morale and set the course, how does the new attorney general, whoever he or she may be, start to do that?

DAVID RIVKIN: Well, I'm sure that the president would nominate a person of exceptional intellectual caliber and moral probity. A number of people have been mentioned all fitting this criteria.

But, quite frankly, Ray -- and I know it goes against conventional wisdom -- a great thing that would happen, not only by virtue of arrival of a new attorney general, going to start with a clean slate. We need to stop or at least diminish the partisan rancor. Quite frankly, I don't get a sense that the morale is that low at the department.

To the extent there's been some lowering of the morale, it's because there's a daily drumbeat of statements and allegations from the media and from Capitol Hill. Think about it. If you came to work every day and you read in the paper on your way to work that something is fundamentally wrong here, eventually it would supplant things that even you know not to be the case.

I am convinced that, if there's going to be some cessation, some -- and I'm not naive, there is going to be partisanship between the Republicans and Democrats. There's going to be institutional warfare. You've got to understand what happened with Alberto Gonzales at issue look at the key intellectual battles, battles of NSA surveillance, Guantanamo, Patriot Act, firing U.S. attorneys. There's a role not personal to him.

There's sort of intellectual battles about the respective constitutional prerogatives of the president and Congress. I'm not expecting them to subside. But if it there will be a little less zeal, a little less "department in disarray."

Because, look, all the interesting thing is, I wonder if anybody looked at the output of the department, number of cases successfully prosecuted, the budget, all sorts of task forces. By any objective measures of corporate performance, the department is doing quite well. I think we have a little bit of a Washington veneer problem that can be lifted quite easily.


The power of the attorney general

RAY SUAREZ: Do you share David Rivkin's diagnosis, Jamie Gorelick...

JAMIE GORELICK: No.

RAY SUAREZ: ... that this is something that is imposed on the department from outside, this idea that it was in disarray and ineffective?

JAMIE GORELICK: The department has had very little oversight until the change of control in the House and Senate. The calls for the attorney general's resignation came on a bipartisan basis, so I don't see it as a product of partisanship.

But you can't help but notice the fact that there is almost no senior leadership within the department. The number of vacancies is huge. There has been a hemorrhaging of some of the most senior and skilled career people, as well. And the comments that you read from career people in the newspaper simply suggest that they are demoralized and as demoralized as they were, say, post-Watergate.

But actually measuring how demoralized the department is, is really quite irrelevant. The question is: What do you do now? And there is a wonderful opportunity that the president has to appoint, to nominate someone who would be inspirational.

A number of people have talked about how Edward Levi came in, in the Ford administration, to repair the damage that was done in the period of Watergate. The department needs someone who understands its traditions and its historic mission, understands that the Justice Department holds a special place in the cabinet.

It's not like other cabinet agencies. It's supposed to have a measure of independence in order to make sure that the laws and the Constitution are upheld and that the rule of law is paramount in this nation. And if we get a new attorney general who can come in, and new appointees who can come in, and heal the rifts within the department, I'm very confident that this department will be resilient and will return to its fine traditions.

Choosing Gonzales' replacement

RAY SUAREZ: Well, David Rivkin, you've talked about intellectual heft legal achievement, but Jamie Gorelick, by citing the example of Edward Levi, he was somebody who was not on anybody's radar. He was the president of the University of Chicago and not an expected in-the-pipeline choice to be attorney general. Should the president choose somebody who's really not on one of those Washington-insider short lists?

DAVID RIVKIN: It's possible. But again, to me there's a whole slate of acceptable candidates. And, Ray, it's very important -- I cherish the department. I cannot agree more with Jamie about how important for it to work well, even when we disagree about how demoralized things have gotten.

But let's also agree that it is the institutional role of the department to protect the prerogatives, not the prerogatives of this president, but executive prerogatives. And the thing that troubles me is there has been, unfortunately, a lot of sentiment on the part of Congress -- bipartisan to be sure, because a number of Republicans are saying that -- that somehow executive power needs to roll back and curtail.

And this anti-executive animus in the long run is not good for the country. It distorts fundamentally our constitutional fabric. For example, I agree with Jamie that the attorney general should be a person of exceptional probity who respects the rule of law. But the notion that somehow he or she should be independent from the president, cannot be his friend, for example, I think the framers would chuckle ruefully when they hear that. Where is it written?

If you're a man or a woman of integrity, the fact that you may be friends with the president does not prevent you from calling you as you see it. And now we're hearing, if you're not a person of integrity, you never met the president does not protect you from -- protect the country from you not exercising your duties. There's this very unfortunate tendency to balkanize the executive, which I think is quite unfortunate.

RAY SUAREZ: How do you -- go ahead.

JAMIE GORELICK: I would agree that you don't have to be someone who is a stranger to the president. I'm not one of those folks who would say the attorney general should be at complete arm's length from the president. I totally agree with David on that.

But it is important to understand that you do not give the opinion that the president wants simply because the president wants it. The independence that is required is the independence of thought, the fealty to the law; that's the critical quality that you want.

And so it doesn't matter if the person is well-known to the president or not well-known. It's the stature; it's the understanding of the role.

I'd also like to comment on David's concern about the evisceration of executive power. In my personal view, the way you get greater executive power is by making sure that the other two branches of government trust you. And they won't trust you if you are not transparent with them, if you do not share with them the information to which they are entitled. If you do, particularly in the area of national security, there will be tremendous deference.

It is my view that by claiming the right to do everything unilaterally, you ultimately undermine the actual quotient of executive power that you end up with. I believe that the posture that the Justice Department has taken actually is going to end up weakening executive power. I'm all in favor of executive power, but it is one that is achieved by the appropriate sharing of information and bringing into comity the other two branches of government.

RAY SUAREZ: Jamie Gorelick, David Rivkin, thank you both.

DAVID RIVKIN: Good to be with you.