Our sense of justice is eroding
Edward Levi and Griffin Bell were very different men. One was the son and grandson of rabbis, a legal scholar whose life revolved around the University of Chicago. The other was a country lawyer who became a master operator in the Atlanta legal world. One was appointed to high office by a Republican president, the other by a Democrat.
Yet for all their differences, Levi and Bell came to share a mission. Together, they created the modern Department of Justice and, more important, the modern American idea of the rule of law.
They were the first two attorneys general appointed after Watergate — Levi by Gerald Ford and Bell by his fellow Georgian Jimmy Carter. And they both set out to refashion the Justice Department into the least political, most independent part of the executive branch. “Our law is not an instrument of partisan purpose,” Levi said. It cannot become “anyone’s weapon.” Bell described the department as “a neutral zone in the government, because the law has to be neutral.”
They understood Richard Nixon’s deepest sins: He saw the law as an instrument not of justice but power. Yet Levi and Bell also knew that Nixon hadn’t been the only problem. Other administrations had also misused the law — investigating enemies and rivals, like civil-rights leaders. So Levi and Bell made sure that the crisis of Watergate didn’t go to waste.
They changed the rules for FBI investigations. They put in place strict protocols for communication between the White House and Justice Department. They made clear — with support from Ford and Carter — that the president must have a unique relationship with the Justice Department.
“It’s perfectly natural and fine for the president and others at the White House to have interactions with the Justice Department on broad policy issues,” Sally Yates, the former deputy attorney general, told me. “What’s not OK is for the White House, and especially the president, to have any involvement with criminal prosecutions. That really turns the rule of law on its head.”
No administration has been perfect in the pursuit of neutral justice, but every one from Ford’s through Barack Obama’s stayed true to the post-watergate overhaul. They allowed uncomfortable investigations to proceed unimpeded. They did not treat the law as a weapon.
Then came President Donald Trump. The story of Levi and Bell highlights how fragile the rule of law is. Much of it does not depend on the Constitution or legislation. It depends on political culture and habits. And that culture and those habits can change. In the sweep of history, the reforms of Levi and Bell are still quite young.
The most obvious ways that Trump is undermining the law involve the Russia investigation. Like Nixon, Trump is enraged that anyone in his administration would investigate anyone else in it. But Russia is only one part of the problem: Trump really does view the law as a weapon, to protect his allies and strike his enemies.
An incomplete list includes: He suggested an end to the prosecution of someone he likes (Joe Arpaio) and the start of prosecutions of people he hates (Hillary Clinton, James Comey). Trump defended his personal lawyer by claiming that the government regularly fabricates evidence. Trump has dragged federal prosecutors into politics, bringing one of them — John Huber, Utah’s top federal prosecutor — to the White House to give a speech lobbying for new immigration laws.
Other presidents did none of this. It undermines the idea of equal justice. It tells Americans that our legal system is merely another instrument of partisan battle, that our prosecutors and law-enforcement officers are political hacks in disguise.
The Trump attacks on the justice system demand a stronger response. The media can’t become numb. His aides and appointees need to stand up to him more often — rather than, for example, assenting to a baseless new inquiry into Clinton, overseen by none other than Huber.
And other Republicans, in Congress and private life, should summon more courage. “We don’t see senior Republican officials, either current or past, defending the Department of Justice and the FBI,” John Bellinger III, a veteran of the George W. Bush administration, said last week at a Georgetown University conference on democratic norms. “It’s just inexplicable.”
Where are the Republican defenders of law and order? Where are you, John Ashcroft? What about C. Boyden Gray, Larry Thompson, Paul Clement, Ted Olson, Susan Collins and Ben Sasse? At least a few of them should be willing to take a little heat in defense of the American system of justice.
In retrospect, Levi almost seemed to be pleading with them in his 1977 goodbye speech as attorney general: “We have shown that the administration of justice can be fair, can be effective, can be nonpartisan. These are goals which can never be won for all time. They must always be won anew.”