The proper role of the Attorney General of the United States has been much in the news in recent years. William Barr received scathing criticism for how he handled the Mueller Report regarding Russian interference in the 2016 election; the sentencing of President Trump’s associate, Roger Stone; the charges against President Trump’s first national security adviser, Michael Flynn; and numerous other matters.
Mr. Barr’s critics accused him of perverting his office from one that served the rule of law in a nonpartisan fashion into one that catered to President Trump’s personal and political desires. Many of these critiques condemned Barr’s flouting of the traditional norms of the Department of Justice that exist to guard against its politicization.
Mr. Barr was not the first Attorney General to be accused of allowing the Department of Justice to be politicized. Woodrow Wilson’s Attorney General allegedly conducted a series of unconstitutional “raids” on political dissidents for the purpose of furthering his political ambitions. Several presidents appointed Attorneys General who had held senior positions in their presidential campaigns. George W. Bush’s Justice Department engineered the firing of numerous U.S. Attorneys, allegedly for political reasons, and produced legal opinions that justified the administration’s use of torture. Eric Holder, President Obama’s first Attorney General, described himself as the President’s “wing-man.” Obama’s second Attorney General, Loretta Lynch, suffered withering criticism for meeting with former President Bill Clinton while Hillary Clinton was under investigation by the FBI. Claims that the Department of Justice and the Office of Attorney General have been politicized have been common throughout our history and, in all likelihood, will continue to be so.
In recent times, the most egregious politicization of the Office of Attorney General, at least until Barr came along, occurred during the Nixon Administration. President Nixon’s first Attorney General, John Mitchell, was the President’s close personal friend, former law partner, and campaign manager. He went to prison for his role in the Watergate scandal. Mitchell’s successor, Richard Kleindienst, pled guilty to lying to Congress about President Nixon’s attempted interference with an antitrust case. When events related to Watergate forced Kleindienst’s resignation, the President appointed Elliot Richardson, who chose to resign several months later when the President ordered him to fire Archibald Cox, the Watergate Special Prosecutor. Throughout the Watergate investigation, Henry Petersen, the Assistant Attorney General in charge of the Criminal Division during the Nixon Administration, served as an “open conduit” of information about the investigation to the President and his aides as the Watergate cover-up proceeded. Petersen felt the need at one point to tell the press, “I’m not a whore,” but he later reflected, “If I had to say what the greatest crime of the Nixon administration was, I’d have to say it was the public’s loss of confidence in the government, in the Justice Department. It’s a lot harder to regain confidence than to lose it.”
In the aftermath of the Nixon Administration, both President Ford and President Carter made commitments to depoliticize the Department of Justice and to try to heal the scars left by Watergate. President Ford chose Edward H. Levi, a legal scholar and President of the University of Chicago, to serve as Attorney General. President Carter turned to Griffin Bell, a Georgia lawyer who had served for almost fifteen years on the United States Court of Appeals for the Fifth Circuit. ...
The purpose of this Article is to start the process of discerning those lessons for use now and any future time when an Attorney General takes office in the aftermath of a period of politicization of the Department of Justice. Part II provides background about the Office of the Attorney General and describes the distinction between an Attorney General’s roles in “politics” as policy and “politics” as partisanship. Part III discusses the specific circumstances of the Watergate scandal and how it affected the Department of Justice. In Parts IV and V, we examine one episode from Levi’s time as Attorney General and one from Bell’s tenure, as examples from which future Attorneys General might learn. There is not enough room in one article to examine all of the issues they faced, but we hope that the two episodes we have chosen are instructive.
Professor Daniel Meador, who served in the Department of Justice in the Carter Administration, once wrote that the successive appointments of Levi and Bell gave rise to the hope that thereafter Attorney Generals would “be in that mold . . . .” That hope proved forlorn, but the service of Levi and Bell may at least provide a template for when an Attorney General takes office in the wake of a predecessor whose service was not in the independent tradition that Levi and Bell exemplified.
Patrick E. Longan and James P. Fleissner, Partisanship and the Attorney General of the United States: Timely Lessons from Edward Levi and Griffin Bell about Repairing a Politicized Department of Justice, 72 Mercer L. Rev. 731 (2021).