Justice and the Obama DOJ

Justice and the Obama Justice Department

Michael B. Mukasey
Former U.S. Attorney General

Michael B. Mukasey served as the Attorney General of the United States from 2007-2009, as a U.S. district judge for the Southern District of New York from 1988-2006, and as an assistant U.S. attorney for that same district from 1972-1976. In 1995, he presided over the trial of Sheik Omar Abdel Rahman and others for a plot to blow up New York area landmarks. He received his B.A. from Columbia University and his LL.B. from Yale Law School.

The following is adapted from a speech delivered on July 19, 2015, aboard the Crystal Serenity, during a Hillsdale College cruise from Lisbon to London.

If you think about it, it makes sense that in America—the only nation in the world to define itself not by blood or land, but by a law, the Constitution—the government agency charged with enforcing that law, and enforcing the laws passed under it, would be called the Department of Justice. As such, the work of the Justice Department is highly important. It plays a fundamental role in our nation’s life, because its work has to do in one way or another with how honest, how fair, and how safe our country is.

That being said, I’m regretful to have to add that in a country where honesty, fairness, and safety are so strongly influenced by one department of government, over the past six years—largely because of that department’s work—our country has grown less honest, less fair, and less safe than it ought to be. Let me give you some examples.

Recently we hear a great deal about the prosecution of “evildoing” corporations, but not so much about the prosecution of individuals who are the alleged evildoers. Why is that? To be specific, a lot of what we hear with respect to corporations is not about prosecutions at all—it’s about “deferred-prosecution agreements” or “non-prosecution agreements,” agreements that extract enormous financial penalties. Indeed, the current Justice Department takes pride in setting record after record in terms of collecting these penalties.

Other attorneys general, myself included, made such agreements. But the penalties that have been extracted over the past six years are unprecedented. They involve numbers in the billions, and are of a scale that makes it appear that the Justice Department is acting as a profit center for the government.

Justice Department investigations begin by looking into claims, for example, of unlawful payments to foreign officials or of unsafe motor vehicles. Corporations often face disastrous collateral consequences simply from having charges brought against them, which is why they are often willing to admit to conduct that the government cannot prove, to pay enormous fines, and to accept the oversight of monitors. In return, the government agrees that no charges will be filed so long as the corporations remain on good behavior for some specified period of time. Charges are rarely brought against individuals, on the other hand, because individuals can be put in jail. When faced with this, people usually fight back—and when they fight back, they frequently win.

This process generates cynicism about the American justice system, as individuals go uncharged, billion-dollar penalties are assessed, and the ones who pay are not wrongdoers, but corporate shareholders and employees.

The DOJ’s Civil Rights Division is the one we think of as having the main responsibility for protecting fairness. Yet its recent record has indicated other priorities. Recently its Voting Section went out of its way to review a decision to change the system of municipal elections in Kinston, North Carolina, from partisan to non-partisan. That change had been approved by the voters of Kinston, which is a majority black town. Indeed, it had been approved by an overwhelming two-to-one vote.

Under Section 5 of the Voting Rights Act, the Justice Department may intervene when voting rules are changed in any state where there’s historically been discrimination. But because black citizens were in the majority in Kinston, there should have been no occasion to intervene. The DOJ justified its intervention by saying that blacks were not always a majority of voters, even though they were a majority of the citizens; it argued further that the removing of party labels might deprive black voters of an identifying label necessary for them to vote for black candidates—i.e., the label “Democrat.” In other words, the Justice Department was arguing that the black voters of Kinston needed the paternalism of the Justice Department to protect them from themselves.

Fairness and safety are sometimes related to one another. During the 2008 election, two members of the New Black Panther Party showed up at a polling place in Philadelphia dressed in black battle fatigues, one of them brandishing a nightstick and the other yelling at white voters that they would soon be ruled by a black man. The scene was described in an affidavit by a poll watcher—a veteran civil rights activist who had often supported Democratic candidates—as something he had never seen or heard of in his 40 years of political involvement.

In the waning days of the Bush administration, the DOJ’s Voting Section filed a lawsuit and won a default judgment. But in the spring of 2009, after the Obama administration took over, those handling the case were directed to drop it. The only penalty left in place was a limited injunction that barred the person with the nightstick from repeating that conduct for a period of time in Philadelphia. And when the Office of Professional Responsibility looked into the matter, their finding criticized the bringing of the case more than the dropping of it.

Contrast that response with the DOJ’s treatment of a 79-year-old protestor outside an abortion clinic who was sued by the Civil Rights Division’s Criminal Section for praying outside the clinic and urging entrants to reconsider abortion. When that protestor was pepper sprayed by an abortion supporter for exercising his First Amendment rights, the Criminal Section did nothing.

Consider as well the 2012 case of Trayvon Martin, a young man who was shot in an encounter with a neighborhood watch member. Notwithstanding that the shooter was not a member of any police department, and that he was acquitted of criminal responsibility in the incident—nevertheless, in the wake of the case the DOJ’s Civil Rights Division zeroed in on the police department of Sanford, Florida, where the incident occurred, suggesting discriminatory policing. A similar pattern—whereby a confrontation between a police officer and an African-American is followed by a Justice Department proceeding against the jurisdiction, regardless of the legal outcome or the equities of the incident—has been followed in cities such as Baltimore, New York, and Ferguson, Missouri.

State and local jurisdictions do not have the resources or the political will to fight the federal government. As a result, more than 20 cities are now operating under consent decrees secured by the Justice Department, with court-appointed monitors imposing restrictive standards on police officers who now think twice before they stop suspects or make arrests. The results are predictable. Shootings are on the rise in New York, as are quality-of-life crimes that create a sense of public disorder and social deterioration. Seattle is also a good example: a federal lawsuit and a court-appointed monitor followed on the heels of a publicized incident, and now homicides are up 25 percent, car theft is up 44 percent, and aggravated assault is up 14 percent.

One lesson to draw from all this is that personnel is policy. If you examine the resumés of people hired into the DOJ beginning in 2009, you will find that the governing credential of new hires was a history of support for left-leaning causes or membership in leftist organizations. By the time of the 2012 election, it was considered unremarkable for DOJ lawyers to display political posters on their office walls, and even outside their offices—something inimical to the spirit and mission of the Department of Justice.

Reprinted by permission from Imprimis, a publication of Hillsdale College.