FDL Exclusive: New Communications Guidelines Emphasize DOJ Independence
Ask, and ye shall receive. Guess who got her hot little hands on the new DOJ "Communications Guidelines for Contact with the White House and Congress" from a source in the know?
The memo is fairly new, dated May 11, 2009. And not yet available online that I’ve been able to find.
So you get a first peek along with me.
We’ve put the full four-page memorandum up here as a PDF for your perusal.
There are several points I want to highlight, so I’m going to walk through the full memo in brief. I’d note that the memo was developed in full consultation with the WH Counsel’s office as well. Good for them.
First, AG Holder emphasizes the rule of law and the importance of DOJ independence up front:
The legal judgments of the Department of Justice must be impartial and insulated from political influence. It is imperative that the Department’s investigatory and prosecutorial powers be exercised free from partisan consideration….
I’m gonna call this the Rove Rule: no political hands in the justice till, thank you very much.
DOJ took a huge hit from the prior administration’s politicization — real or implied. It’s all the same if it taints the perception and trust of the jury pool for the line prosecutors who are trying cases. And that loss of trust will take a long time to rebuild, even for cases of violent crime where convictions are necessary for public safety.
Which puts every community in this country potentially at risk because of base political motives. Beyond reckless.
I’m pleased to see the DOJ explicitly making clear that is no longer going to be tolerated.
Back to the memo, though, where there is a decided emphasis on DOJ leadership and prosecutors being the ones who determine whether an investigation or prosecution is warranted — and no one else.
The memo references Berger v. US, wherein SCOTUS laid out the primary obligation of government attorneys:
…they are representatives "not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in criminal prosecution is not that it shall win a case, but that justice shall be done.
Guidelines are then laid out for communications with the President on particular prosecutions where the national policy interests are implicated. Such communications shall be initiated by the DOJ only where appropriate, and only to the extent that prosecutorial discretion considerations allow.
There are expressly written guidelines on communications with members of the WH staff, monitoring by supervisors, and details which types of communications are or are not appropriate.
From what I can see from my read through, this not only goes further than the Bush guidelines in erecting safeguards and restrictions, but it also goes further than the Clinton memoranda did that Sen. Whitehouse referenced. What it does, essentially, is erect the proper "Chinese walls" between the political units in the WH and the non-political DOJ needs on discretionary cases, but doesn’t interfere with policy discussions that need to take place.
The questions that I had about national security contacts are also answered therein — consultation on particular policy is okayed, but discussions about pending cases is limited in the same way other criminal matters are limited to prevent political creep in the decision-making legal process. That is excellent news.
There are specific communication guidelines for the various offices where the WH and DOJ have common interest areas: the Solicitor General’s office, Presidential pardons, personnel matters, and non-case policy issues.
Further, and this is very important, requests for legal advice from the WH to OLC are expressly to be made to the AG or the Assistant AG for OLC (which, hopefully, will still be Dawn Johnsen). And it goes on to say that the head of OLC:
…shall report to the Attorney General and the Deputy Attorney General any communications that, in his or her view, constitute improper attempts to influence the Office of Legal Counsel’s legal judgment.
Seem like a Cheney/Addington preventative measure to anyone else? It’s a very good idea as a stopgap for improper arm-twisting.
There are specific guidelines about Congressional inquiry, communications between them, proper channels and the need for a prompt and appropriate response to oversight. The tone of this section is positive in terms of oversight and cooperation with Congress — which is also a nice change toward transparency and away from belligerence.
Finally, there is an end reference to how charging and other decisions are to be made:
Decisions to initiate investigations and enforcement actions are frequently discretionary. That discretion must be exercised to the extent humanly possible without regard to partisanship or the social, political or interest group position of either the individuals involved in the particular cases or those who may seek to intervene against them or on their behalf.
A lot of this memo is reminiscent of the strictures legal philosophy that Robert Jackson stressed to DOJ prosecutors all the way back in 1940 — a speech that has been the foundation of DOJ ideals for years. It’s is wonderful to see the echos of Robert Jackson in a lot of this.
Here’s hoping we see equal actions to match these words in the days ahead. Good for DOJ.
PS — Yes, I am still on vacation. No, I couldn’t help myself.