Former Clinton official says 'normalcy' is within reach for Justice

By Amy Harder

December 18, 2008

As deputy attorney general, Jamie Gorelick was second in command at the Justice Department under President Clinton. She served there with current Attorney General-designate Eric Holder and later was appointed to the 9/11 Commission by Senate Majority Leader Tom Daschle, now the nominee for Health and Human Services secretary; it's safe to say that Gorelick knows a thing or two about President-elect Obama's incoming team.

Gorelick, now a partner at the Washington law firm WilmerHale, recently discussed the future of the Justice Department with's Amy Harder. While the DOJ's new leadership will undoubtedly face some "vexing issues," she said, restoring "normalcy" to the embattled department is an attainable goal and Holder "has the right experience" for the task. Edited excerpts follow.

NJ: What is the state of the department heading into Obama's inauguration?

Gorelick: I think there is a tremendous amount of work to be done. There are deep morale problems. There is the challenge of addressing the Office of Legal Counsel opinions. There has been a raid on the criminal justice resources of the department, which have been cut drastically in the Bush administration, both at the Department of Justice itself and at the FBI. These are just a few of the many challenges facing the incoming group.

NJ: In an October piece in The Nation, Andrew Gumbel writes that under the Bush administration, the DOJ became "little more than a rubber stamp for the White House on hugely controversial constitutional issues, from warrantless wiretapping to the definition of torture." Do you agree with this assessment?

Gorelick: All I know is from what I've read from [Jack] Goldsmith, who headed the Office of Legal Counsel in the Bush Justice Department, and that characterization suggests that the necessary care in assessing presidential powers, particularly at the difficult intersection of national security and civil liberties, is not taken.

NJ: Are the problems at the DOJ right now institutional or the result of a few people steering the whole department off course?

Gorelick: The Department of Justice is a wonderful institution. It is largely comprised of dedicated career lawyers, and with the proper leadership I have every confidence that it can return to its historical values and historical role.

NJ: A lot of the national security decisions under Bush came out of the Office of Legal Counsel. Tell me a little more about this relatively small department and whether it's typical for the OLC to be at the helm of the administration's policymaking.

Gorelick: The Office of Legal Counsel is the office within the Justice Department that provides the attorney general with advice for the president on such issues as the president's executive authority. It has always played that role, and it has been led by some of the most impressive lawyers that our country has known. It is a relatively small office, but the individuals within it are usually highly credentialed.

One difference between the way that the [John] Ashcroft and [Alberto] Gonzales Justice Department worked and the way that the Department of Justice has normally worked is that in normal times, the Office of Legal Counsel presents its tentative conclusions to the attorney general, the deputy attorney general, the solicitor general and others for plenary discussion of the most weighty issues facing the Department of Justice in its domain. During the Bush administration, for many of the key opinions, that process was not undertaken, or if it was, it was given short shrift by the senior leadership of the department. This is easy to fix, and it should be fixed.

NJ: How do you go about fixing it?

Gorelick: You simply return to normal. In other words, you appoint someone who is well-suited to the job. In the Bush administration, the head of the Office of Legal Counsel decided that national security was not his field, so he absented himself from all key decisions, leaving it to a deputy who operated largely on his own. The usual practice, and the one I'm sure the department will return to, is to have a highly credentialed and highly experienced individual heading that office with well-experienced staff for them to work on opinions consistent with the rule of law and for them to vet those opinions with the senior leadership of the Department of Justice before presenting them to the president.

NJ: Walter Dellinger, who worked in the OLC during the Clinton administration, has suggested that the new administration should bring in OLC veterans from both sides of the aisle to review these national security opinions and decide if or how they should be modified. Do you think that's a good recommendation?

Gorelick: Yes, and I have made the same recommendation, and Walter and I have discussed this both publicly and privately. It is very important that these decisions not be -- or be viewed as -- political. It is my experience, and I think it is Walter's, that there is indeed a fair degree of consensus among individuals who have served in the senior reaches of the Department of Justice, including in the Office of Legal Counsel, on the contours of national security law. There would not be complete agreement, but it would be useful to have as strong a consensus as possible on the scope of presidential authority.

NJ: What kind of difference has Attorney General Michael Mukasey made?

Gorelick: Attorney General Mukasey has done a number of things that are very helpful, including reinstating the rules that were changed at the beginning of the Bush administration on the nature of contacts between the Department of Justice and the White House. He undertook to review the key opinions that had been issued by the Office of Legal Counsel, but the results of that review have not been made public.

NJ: Reports from the inspector general have shown that the Bush team was able to put "loyal Bushies" in key positions over more qualified career lawyers. How difficult will it be for Obama to flush these people out?

Gorelick: This is one of the most vexing issues that will face the new leadership at the Department of Justice, because the heart and soul of the department are career lawyers hired on their merits, trained in the rule of law and mindful of their obligation to the American people. If individuals have been hired inconsistent with those standards, that heart and soul of the department is threatened. And yet, I'm not sure myself what authority the incoming Department of Justice leadership will have to fix this problem.

NJ: Is Eric Holder the right man for the job of restoring credibility to the department?

Gorelick: Yes, I have very high regard for Eric. I think he has the right experience to be a tremendous attorney general.

NJ: If you had one piece of advice for Holder, what would it be?

Gorelick: Restore the department to its historic mission.

By Amy Harder

December 18, 2008