Fix-it

The Justice Department is broken. Having worked with Attorney General Garland when he was the Principal Associate Deputy Attorney General under Janet Reno it is difficult to watch him today, defending decisions that he would never have approved when he served under Reno or lead a Department that is held in such low esteem by so many of the citizens it purports to serve.

To fix the Department’s politicization will require an examination of the Department’s principles, values, and goals and a clear move away from enforcing the law in ways that violate those principles, values and goals. Presidential candidates and talking heads will focus on the selection of the next Attorney General as the way to quickly change DOJ, but that would be a mistake. The quick fix involves targeting the Department’s middle management career officials. These officials are members of the Senior Executive Service (“SES”) and enjoy substantial protections because they typically keep the government running between Presidential administrations and the absence of appointees. These individuals may track liberal, but they have made a long-term professional commitment to government service and with smart incentives and clear metrics they can quickly change the direction of their office, division, or section.

Take the Freedom of Access to Clinic Entrances Act (“FACE”) that has been used to imprison elderly and non-violent individuals who want to pray or offer an alternative to women on their way to an abortion. But the law has not been used as the basis to investigate what have been more than 100 attacks on crisis pregnancy centers and pro-life clinics. Why, because politically the White House and senior DOJ officials seek to curry favor with the pro-abortion lobby so that they will receive their votes and their money. This is wrong, but senior political appointees will not bring change. If Trump wins in November one can expect a different political calculus, but if he concentrates on only the Attorney General, he can expect little to no movement as the career officials continue to motor along as if there had been no election.

Informing SES managers that their merit raises and promotions depend on enforcing laws under their purview in such a way as to communicate to the public that the Department is enforcing the law fairly and equitably and that their performance review will include analysis of the types and numbers of prosecutions authorized so that levels of criminality are also consistent will immediately move the needle. And proactive reports to Congress and the President that are public showing fair and just application of the law will go a long way to restoring the fair administration of the law as one of the Department’s primary goals– a statement that used to be part of the Mission of the United States Department of Justice, “to ensure fair and impartial administration of justice for all Americans.”