A Tale of Two Attorneys General
by George W. Liebmann
American Outlook Today. March 11, 2004
Not since the arbitrary A. Mitchell Palmer, President Wilson’s last Attorney General, was succeeded by the corrupt Harry Daugherty in the Harding administration have the two parties united to so debase federal law enforcement.
Janet Reno, President Clinton’s third choice as Attorney General, carried out the swiftest partisan purge of U.S. Attorneys since that of the Kennedy administration. She supported renewal of the misguided special prosecutor law. At the behest of feminist groups, against the unanimous advice of the Judicial Conference, she secured adoption of Rule 415 of the Federal Rules of Evidence, allowing discovery of a defendant’s sexual history. Similarly, in Burlington Industries v Ellerth, her Justice Department urged on the Supreme Court a broadened definition of sexual harassment, repudiating that given by Judge Susan Wright in dismissing Paula Jones’s case against President Clinton. Thus an employment discrimination law was transformed into a device for defamation and blackmail. Ms. Reno then procrastinated throughout ensuing investigations.
Mrs. Clinton has said that the Danforth investigation of the Waco disaster found “no wrongdoing,” but former senator Danforth’s charge was to investigate only criminal behavior. One cannot picture Attorneys General Jackson, Biddle, or Levi giving such directions as Ms. Reno gave in that instance, nor can one picture them seeking to promote the agent responsible for the premature use of force at Ruby Ridge, as she did.
Regardless of one’s level of sympathy for the outcome of the Elian Gonzalez affair, in which a midnight order entered by a federal magistrate without notice was used to justify transfer of custody at gunpoint, the action was imprudent.
Such controversies are generally resolved by litigated orders, and force, when used, is employed to incarcerate recalcitrant relatives, not to abduct the child.
At the behest of trial lawyers, Ms. Reno acceded to a veto of a product liability law and sought tobacco legislation to bestow billions on this Democratic constituency, an invitation to corruption.
She supported “hate crimes” legislation, resisted by Levi, which, by eliminating requirements that defendants intend to impair a federal right, would create what Justice Jackson described as a “shapeless and all-embracing statute . . . a dangerous instrument of political intimidation and coercion.”
In the wake of the Oklahoma City bombing (allegedly a retaliation for Waco), she sponsored a law including more than forty new federal death penalty offenses, making federal prosecutions the prosecutions of first resort, and attempted to relax prohibitions on military law enforcement.
Partly because of federal drug legislation, with its emphasis on supply rather than demand, and partly because of the “leveling upward” imposed by the Federal Sentencing Commission (whose guidelines specify minimum sentences in excess of the minimums provided by statute), the number of prisoners in federal custody doubled. The number of federal prosecutors has tripled since 1982.
Attorney General John Ashcroft carried forward the Reno policies. The 1968 drug legislation was invoked by both Reno and Ashcroft to preempt state “right to die” and “medical marijuana” laws, even though neither issue was debated in 1968, the Supreme Court left the “right to die” issue with state legislatures, and the laws concerned had been approved in referenda.
The Clinton legislation creating new federal death penalty offenses was invoked to seek the death penalty even in states in which it had been abolished; in New York City, in a case in which the experienced prosecutor Robert Morgenthau had declined to seek it; and in Puerto Rico, whose Constitution prohibited it. This posturing produced waste, since juries where public opinion does not support capital punishment are prone to acquit.
Terrorist acts have been exploited to alter procedure in cases having nothing to do with terrorism; such provisions were rendered temporary only because of Senate resistance. Detention without trial has been employed for American citizens, even though in both World War II and the War on Terrorism, citizen belligerents can be counted on the fingers of one hand. Although the Bush administration recognized that detained citizens retain the right to habeas corpus, they were denied access to counsel and held incommunicado. Needless opposition has been aroused by “pushing the envelope.”
U.S. Attorneys have been asked to report on judges departing from sentencing guidelines. New restraints on plea-bargaining prevent prosecutorial discretion, just as judicial discretion has already been greatly reduced. Mandatory sentences for nonviolent drug offenses are embraced, even as the states are repealing them.
The changes constrict the role of the judge and convert him into an automaton; the public respect in which law is held is endangered. Rigid sentencing guidelines, urged by law-and-order conservatives and liberals like Senator Kennedy, sacrifice liberty to equality.
It is inconceivable that Levi, Benjamin Civiletti, or Edwin Meese would have authorized the “bugging” of the office of a major elected official during an election campaign, an episode that has occasioned insufficient public outcry, though the voters of Philadelphia have rendered a decisive judgment on it.
Twelve years of questionable leadership have produced a drift toward a policing establishment controllable by no one. The federal share of total criminal justice spending has increased from 12 percent to 18 percent since 1982; proposed FBI spending is up 19 percent in one year, and up 60 percent over 2001 levels.
Justice Jackson cautioned that the “potentiality of a federal centralized police system for ultimate subversion of our system of free government is very great.”
The genuineness of Reno’s concern for minorities is not open to question, nor is the authenticity of Ashcroft’s alarm at deteriorating personal behavior. But during Prohibition, the nation’s last experience of pervasive federal law enforcement, Justice Brandeis cautioned that “the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” Except for the need to make it gender-neutral, that statement is as true now as it was then.
The public wants security, and will put up with mistakes in its cause. But when it senses that important values have been ignored, there is retribution. By the time the Supreme Court adjourns in June, it almost certainly will have embarrassed the administration by rejecting some of the extravagant claims for power made by it in the several terrorism cases the Court has significantly agreed to hear.
The Republicans lost the 1976 presidential election because of Watergate; the Democrats that of 2000 because of Clinton’s shoddiness. Even Lincoln paid a price in the 1862 congressional elections for arbitrary arrests. If the President makes no change in his Justice Department, he may also suffer such consequences.
Opinions expressed do not necessarily reflect those of the Hudson Institute.
George W. Liebmann is an attorney in Baltimore and the author of several books, including Six Lost Leaders: Prophets of Civil Society (Rowman & Littlefield, 2001), and Solving Problems Without Large Government: Devolution, Fairness and Equality (Praeger, 2000).
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