White House Interference with Justice Department Investigations? That 2009 Holder Memo
Jane Chong writes at Lawfare:
Last Saturday, Harry Siegel of the New York Daily News reported that shortly after President Trump signed his immigration executive order, Stephen Miller called the U.S. Attorney for the Eastern District of New York, Robert Capers, to instruct him on how to defend the order in court.
The alleged contact prompted Matthew Miller, former Department of Justice spokesman under Attorney General Eric Holder, to ask on Twitter:
This sort of contact is prohibited under a memo from Holder that is still in force. Is Sessions going to allow this kind of WH meddling? https://t.co/BQy5M98EBN
— Matthew Miller (@matthewamiller) February 19, 2017
The issue of Justice Department independence is one that (Matthew) Miller also raised last month prior to Sessions’s confirmation. “This is the biggest question Jeff Sessions has to answer,” Miller told Politico, in a story detailing longstanding internal policies designed to shield the Department from political pressures. “Attorneys general have always established it’s not appropriate for the White House to influence prosecutorial or investigative decisions. But there’s no law or regulation. If they want to change it, they can change it.”
So is Miller right? Given the alleged conduct of Trump’s political aide, must Sessions do something about the guidelines presently in force?
Not necessarily. Miller may be jumping the gun a bit, given the language of the memo establishing the Justice Department policy in question and given how little we know about the alleged Miller-Capers communication.
Let’s back up and acknowledge the historical context. After Watergate, Jimmy Carter campaigned on the promise to establish “as far as constitutionally possible, an independent Department of Justice,” and in 1978 his attorney general, Griffin Bell, sought to make good on that pledge by instituting procedures to insulate the Justice Department from political pressures. But what became the customary rules governing interaction between the White House and Justice were relaxed most recently under the George W. Bush administration, in a set of episodes the administration came to regret. As recounted by Politico in January, Bush’s first attorney general, John Ashcroft, expanded the number of White House officials permitted to contact the Justice Department on non-national security members from four to 417; his second attorney general, Alberto Gonzalez, further increased the number to 895 (according to findings by Senate Judiciary Committee member Sheldon Whitehouse, a former U.S. attorney). These changes ended in scandal: among other things, under Gonzalez, seven U.S. attorney generals were abruptly fired in 2006 for political reasons that, according to a subsequent report by the Justice Department Inspector General, “raised doubts about the integrity of Department prosecution decisions.” Michael Mukasey reinstituted more traditional guidelines in 2007, and Eric Holder replaced them with his own substantively similar variant in 2009.
As (Matthew) Miller predicted, particularly given the loose rein apparently enjoyed by political aides in the current White House, the question of appropriate contact between the White House and Justice Department is likely to become a major one. But the memo is loosely enough worded that it is highly doubtful that episodes like (Stephen) Miller’s alleged interference would prompt Sessions to take the conspicuous, politically fraught step of simply revoking the Department policy—that is, without replacing it with something similar, as Holder and past attorney generals have done.
The 2009 memorandum Miller refers to was issued by then-Attorney General Holder after consultation with White House counsel and sets forth guidelines restricting communications between the Justice Department and the White House to ensure that the Department’s legal judgments are “impartial and insulated from political influence” and that its “investigatory and prosecutorial powers be exercised free from partisan consideration.”
The heart of the memo isa set of prescriptions limiting the Justice Department’s communications with the White House and Congress regarding pending or potential criminal or civil investigations or cases. The Department will advise the President on such investigations or cases “when—but only when—it is . . .