The Model for Fixing the DOJ
Joe Biden has inherited a department plagued by scandal, just as Gerald Ford did in 1974.
President Joe Biden is facing problems Gerald Ford would have appreciated. Like Ford in 1974, Biden has come into office following a president accused of criminality. Both Biden and Ford inherited a Department of Justice plagued by scandal and well-grounded charges of politicization. Both had to choose a nominee for attorney general knowing that recent occupants of that office contributed to partisanship and displayed a lack of integrity. And both took office while questions lingered about recent leadership of the Federal Bureau of Investigation, a component of the DOJ.
Ford managed to make progress on all of these problems in just two and a half years. By the end of his presidency, he had laid the groundwork for a historic improvement in both the appearance and the reality of nonpartisanship and professionalism at the DOJ. Jimmy Carter’s one-term presidency continued the work. The 1970s ended in a much better place than they had begun, with solidly entrenched laws, rules, and norms that kept the DOJ largely—not entirely, but largely—free from partisanship and serious misconduct for decades.
Understanding the nadir reached at the department in the early 1970s, and the creative repair that took place under Ford and Carter, reveals how aberrational Donald Trump’s relationship with the department was, and, looking ahead, what problems and opportunities today face Biden and the new attorney general, Merrick Garland, as they attempt to move on from the past four years. Scandal can create political will for reform. Biden and Garland have an opportunity to both shore up the 1970s framework and address new problems revealed by the Trump presidency.
In a certain sense, they have an easier task than their predecessors in the 1970s. The leadership failures at the DOJ were much worse in the previous era compared with today. James Comey mishandled the public disclosures about the Hillary Clinton email investigation, which might have affected the 2016 election, but he was an honorable and law-abiding FBI director—a far cry from J. Edgar Hoover. Comey’s replacement, Chris Wray, is competent and professional. Trump’s attorney general William Barr acted unethically in a number of high-profile matters, but there is no evidence that he committed crimes in office, as Nixon’s attorney general John Mitchell had. Moreover, under Ford, new policies needed to be created from scratch. Today, there is already a model and a department workforce acculturated to prize nonpartisanship and professionalism.
But the repudiation of Nixon and Watergate was ultimately bipartisan. Today’s Republican Party, by contrast, has yet to reject Trump and what he did to the country’s institutions. For Biden and Garland, that makes the work ahead much more difficult.
Perhaps ford’s most important decision was to seek a nominee for attorney general who would be indisputably independent of the White House and understood by all to be a person of high integrity. He selected Edward Levi, the president of the University of Chicago and a former law professor and law-school dean who had served in the DOJ early in his career. A very successful academic administrator, Levi was widely admired for his probity and commitment to calm, reasoned problem solving. At his Senate confirmation hearing, Levi testified that he was not sure if he had ever registered as a Republican or a Democrat to vote. In addition to being independent in his personal politics, Levi pledged to operate the department free from any partisan or other improper interference from the White House.
At his swearing-in ceremony, Levi described the need for the appointment of someone like him, noting a “corrosive skepticism and cynicism concerning the administration of justice,” in particular the belief that law might be “an instrument of partisan purpose.” There was good reason for this cynicism. For some time, presidents—Harry Truman, Dwight Eisenhower, and John F. Kennedy—had appointed senior campaign aides to the attorney general’s post. Nixon took this bad idea to a new level. When confirmed, Levi became the sixth attorney general in five years. Nixon’s first, Mitchell, was a close friend of Nixon’s who had run his 1968 presidential campaign. Mitchell started working on the president’s 1972 reelection campaign while still attorney general, participating in decisions about both legal and illegal campaign activities. He eventually resigned his government position and moved to the campaign full-time. Mitchell was deeply involved in the Watergate crimes, and was indicted along with a number of White House aides in early 1974, while Nixon was still president. His career ended with a prison sentence and disbarment.
Nixon’s next attorney general, Richard Kleindienst, came from a political background in Arizona. He allegedly learned early on about White House involvement in the Watergate crimes but kept it to himself. Kleindienst resigned in 1973 after only nine months in office while details about Watergate were slowly leaking out; he said too many colleagues and friends appeared to be involved for him to stay on. The next year he was convicted of having lied to the Senate about a Nixon White House directive to go easy on ITT in an antitrust case because the company gave money to the Republican Party.
Nixon’s third attorney general, the exemplary Elliot Richardson, did not last long. When Watergate Special Prosecutor Archibald Cox sent a subpoena to Nixon calling for previously secret Oval Office tape recordings, the president ordered Richardson to fire Cox. Richardson—who had vowed to the Senate at his confirmation hearing to protect the Watergate investigation—refused and resigned, starting the so-called Saturday Night Massacre. Richardson’s deputy, William Ruckelshaus, who immediately became the acting attorney general, also refused and left office that day. The third in line at the DOJ—Robert Bork—was willing to fire Cox. Nixon abolished the office of special prosecutor, and White House aides directed the FBI to seal the offices of Cox, Richardson, and Ruckelshaus. Yet the explosion of outrage in Congress and the press forced Nixon to acquiesce to a new special prosecutor, Leon Jaworski, who would work independently of the attorney general. Congress began impeachment proceedings a week after the firings, and Jaworski pursued the litigation that would result in a Supreme Court order to Nixon to turn over the damning tapes. Nixon’s end was near, but the Justice Department’s reputation had already been severely damaged.
The FBI was consumed with troubles of its own. A few months before Nixon’s 1972 reelection, FBI Director Hoover died in office after nearly 50 years at the helm. Nixon appointed as acting director a Justice Department lawyer, L. Patrick Gray, because he was an old Nixon friend and campaign aide and was expected to be a White House loyalist. Gray destroyed incriminating Watergate documents and allowed White House aides to have access to confidential FBI files and interviews on the Watergate investigation, and soon resigned in disgrace.
Meanwhile, information was leaking out about the FBI’s manifold misdeeds under Hoover. The roots of the abuses and illegality dated back to before Nixon and Watergate. For instance, it was Robert Kennedy, attorney general in his brother John’s administration, who in 1963 approved an FBI wiretap of Martin Luther King Jr. Throughout his tenure as director, Hoover had done what he wanted. As Senator Edward Kennedy put it after Hoover’s death, “The FBI has never before been truly accountable to anyone for anything.” Under Hoover, the FBI surveilled, infiltrated, and disrupted supposedly subversive groups involved in the civil-rights movement, Vietnam War protests, and environmental activism. Prominent cultural figures suspected of left-wing views were monitored, including Charlie Chaplin, Orson Welles, Langston Hughes, and John Lennon. Hoover kept files of salacious or otherwise damaging information on politicians, too, and was viewed as untouchable in his job because of his potential to blackmail. He was also willing to use illegal methods to gather political intelligence for Presidents Lyndon Johnson and Nixon, including wiretapping sitting members of Congress, executive-branch officials, journalists, and others.
In the early and mid 1970s, various congressional committees investigated misdeeds at the Justice Department and its FBI component, and some important members of Congress proposed radical institutional change. Senator Sam Ervin, a Democrat from North Carolina, introduced a bill to turn the DOJ into an independent agency—akin to the Securities and Exchange Commission or the Federal Trade Commission. Ervin proposed that the attorney general be removed from the Cabinet, given a six-year term in office, and protected by statute from presidential dismissal unless “for neglect of duty or malfeasance in office.” Ervin’s bill would also have given hiring and firing authority over the FBI director and U.S. attorneys to the attorney general rather than to the president. Other reform-minded senators made similar proposals. For instance, Senator Henry “Scoop” Jackson, a Democrat from Washington, proposed a bill that would have made the FBI director removable by the president only for good cause, such as neglect of duty or criminal conviction.
Ultimately, both constitutional realities and calculations of good policy doomed these proposals. Advised by the Congressional Research Service, the Justice Department’s Office of Legal Counsel, and other legal experts, Congress in 1973 and 1974 concluded that Article II of the Constitution—which gives the president “the executive power” and the duty to “take care that the laws shall be faithfully executed”—required that the president be able to fire the attorney general and FBI director at any time. The Constitution, it was agreed, anticipates that the president sets the broad policy directions for law enforcement, and that the most senior executive officials heading law-enforcement entities are directly accountable to the president—to ensure that the president’s policies are carried out and to prevent the rise of another Hoover.
Yet there was also widespread agreement that the White House should only rarely, in unique circumstances, involve itself in specific investigative or charging decisions. After the president and his political advisers determined priorities and broad policies, the specifics should be left to a functionally independent Justice Department. There was likewise agreement that considerations of political partisanship or other corrupt motives should never again be allowed to influence federal law enforcement, and that lawbreaking by DOJ officials could never again be tolerated.
The idea that the Justice Department should be independent of the White House had been developing for a long time, and was certainly already present by the early 1970s. This is why Nixon acted secretly when he tried to undermine the Watergate investigation from within while publicly claiming that the department would pursue the matter vigorously. But the revelations about Watergate and Hoover’s FBI, and the intense public and congressional conversations about reforms, helped crystallize the need for an independent, professional, nonpartisan Justice Department in the minds of the country’s political class.
When he took office in early 1975, Attorney General Levi began the process of implementing this broadly shared vision. His work, which was continued by Attorneys General Griffin Bell and Benjamin Civiletti, who served under President Jimmy Carter, was spectacularly successful.
One set of efforts was aimed at transparency and accountability for past abuses. Levi committed to Congress that information would be uncovered and released where possible and that Justice Department officials would cooperate with investigations. Congress and the public were understandably shocked by many of the revelations. Former FBI Assistant Director William Sullivan testified to the Senate’s Church Committee—a select group formed to investigate intelligence-related abuses by the Central Intelligence Agency, National Security Agency, FBI, and other entities—that the FBI’s work in domestic intelligence gathering had been “a rough, tough dirty business,” and that the bureau had used the same techniques against Americans as it did against the KGB. Members of Congress were displeased (to put it mildly) to learn about the secret FBI dossiers kept on some of them. Levi ordered a full review of the FBI’s actions against King.
Dozens of criminal investigations were opened on FBI agents who had ordered or carried out illegal “black-bag jobs.” Two very senior FBI officials were convicted of authorizing illegal break-ins at the homes of relatives of members of the Weather Underground, a violent far-left group. Together with the criminal convictions of Attorneys General Mitchell and Kleindienst, this helped emphasize the message that illegality would not be tolerated any longer.
Levi also created two offices to investigate misconduct by DOJ officials and employees. Both were called the Office of Professional Responsibility—one for the FBI and one for the DOJ as a whole. Later, Congress added more oversight by creating an inspector general for the department, tasked with rooting out waste, fraud, and illegality and reporting to both Congress and the attorney general.
Levi’s team at the department developed guidelines to govern FBI investigations, with the aim of ensuring that only legitimate inquiries were pursued and that more intrusive investigative techniques were reserved for serious cases. As noted, a particular problem under Hoover had been investigations of groups composed of American citizens who held views critical of the government—whether it be in the area of civil rights, the war in Indochina, or other areas. The FBI often targeted groups based purely on expressive behavior that should have been considered protected by the First Amendment. To stop such abuses, Levi issued Domestic Security Investigation Guidelines, which required a defined factual predicate to initiate any investigation. A full investigation could only be authorized by the FBI headquarters, and required the bureau to have “specific and articulable facts” suggesting acts of violence or federal crimes. Levi also centralized oversight of the FBI by Justice Department lawyers.
Another key innovation was developed by Attorney General Bell. In a 1978 speech to Justice Department employees, Bell announced that all communications coming from Congress or the White House to the Justice Department about specific party matters must be routed through the attorney general or the department’s second- and third-in-command lawyers, the deputy attorney general and the associate attorney general. Communication about broad matters of policy could flow freely, but White House intervention in specific cases would be severely limited and monitored.
Congress added other key reforms. The Senate announced that political operatives would not be considered appropriate nominees for attorney general. Two landmark statutes—the first in 1968 concerning ordinary criminal cases, and the second in 1978 concerning foreign intelligence investigations—require both high-level executive-branch sign-off and judicial review before bugging or wiretapping is allowed in the United States.
Another 1978 statute created the independent-counsel mechanism to investigate wrongdoing at high levels in the executive branch. Responding to the Saturday Night Massacre, Congress expressly cut the president out of the loop for initiating or terminating such investigations. (Both parties in Congress were happy to let this law lapse in 1999 after the experience of Ken Starr and other overly aggressive independent counsels.)
The combined effect of these and other reforms served the country well for decades. But few reforms were actually codified in statute. Most operated at the level of norms, practices, and sub-statutory executive-branch policies. The success of the system therefore depended on multiple actors continually agreeing to abide by relevant rules. The Senate needs to be consistently vigilant about who it confirms into senior offices, and Congress must exercise active oversight to detect and deter abuses. Attorneys general, FBI directors, and other senior political appointees need to be people of high character who are devoted to the ideals that Levi embodied. Presidents, White House counsels, and other political aides of the president likewise need to commit themselves to respecting the independence of the Justice Department, even if it feels inconvenient at times. The various watchdog offices within the department need to do their jobs fearlessly and with integrity. Career employees at the FBI and the DOJ need to strive to make decisions solely on the basis of law and facts, without regard for improper considerations such as partisanship. The press and outside interest groups need to monitor, publicize, and criticize any deviations from the important norms crystallized in the 1970s.
This system and these commitments were severely stressed by the presidency of Donald Trump. Trump openly challenged the norms of Justice Department independence in a way Nixon never did. Trump publicly called on the department to punish enemies and protect his friends. He fired Attorney General Jeff Sessions because Sessions was not implementing this corrupt program. Trump fired FBI Director Comey for refusing to pledge personal fealty, and then admitted on television that he had acted to protect himself personally from the Russia investigation. And so on.
Biden has so far said and done the right things. He (or aides speaking for him) has stated frequently as a candidate and president that he will have an “independent” Department of Justice that does not answer to the White House. Biden also picked as attorney general a person of outstanding character and qualifications. Perhaps even more importantly, as the legal commentator and scholar Benjamin Wittes wrote, Garland is “the closest thing American political and legal life offers in this polarized time to a figure above politics.” Garland and several senators paid tribute to the example of Ed Levi at Garland’s confirmation hearing.
In some ways, Biden and Garland face an easier task than Ford and Levi did. Levi, with crucial assistance from Congress, needed to come up with new policies from scratch, whereas Garland inherits a Justice Department with an honorable tradition to return to.
But in other ways, the problems are knottier today. Trump’s frontal assault on the notion of independent, nonpartisan, professional law enforcement took place in an era of political polarization that is much worse than in the 1970s. “Political sectarianism” or “pernicious polarization” in American politics has made it intensely difficult to cooperate across party lines in Congress, or even to agree on important facts. (Was there collusion between the 2016 Trump campaign and Russia? Who truly won the 2020 presidential vote?)
In the 1970s, the leaders of both parties more or less shared a common understanding about the abuses of Nixon and Hoover. “Alternative facts” had not yet infected our politics. Abusive government behavior toward the other side of the aisle was not tolerated or even lauded by party leaders. The relative agreement about facts and values allowed important norms to develop to protect the independence and professionalism of the Justice Department. The two political parties were still able to reach common ground about nominees for key roles, and about important legislation.
Congress was a crucial partner in crafting and implementing the 1970s reforms. Today, polarization, a 50–50 Senate, and the filibuster mean that Congress might be absent in the reform effort.
There is another way in which Garland is facing a tougher job than Levi did. Only one month after Nixon’s resignation made him president, Ford granted his predecessor a full pardon for any federal criminal offenses he might have committed. Levi thus came to office freed of the awesome responsibility of figuring out how to handle the alleged criminality of a former president. By contrast, Biden pledged during the campaign that he “absolutely” will not pardon Trump and that the Department of Justice will decide independently of the White House how to proceed on any federal investigations or criminal charges. That is a weighty burden for Garland and the department today.
Enduring constitutional realities mean that fundamental restructuring of the Justice Department is off the table today, as it was in the 1970s. Federal law enforcement can never be turned entirely into an apolitical civil-service bureaucracy. As a result, weaknesses revealed by the Trump years must be addressed in more fine-grained and subtle ways. There are a number of good proposals already circulating. Jack Goldsmith and Robert Bauer—a senior DOJ official under George W. Bush and White House counsel to Barack Obama, respectively—just published a book filled with helpful ideas. Groups such as Protect Democracy and the Center for American Progress have proposed reforms, as have thoughtful members of Congress, including Representative Jerrold Nadler, chair of the House Judiciary Committee, and Representative Adam Schiff, chair of the House Intelligence Committee. (I have also offered a few ideas.) The stakes are very high: Nonpartisan, professional law enforcement is one of the key factors that separate tyrannies from countries with a meaningful rule of law. The country is fortunate that the work of people like Ed Levi in the 1970s set the United States on the right path; their values and ideas can be an enduring source of guidance.