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How Republicans hacked the Justice Department

by Scott Horton

Harper's Magazine Essay (March 2008)

We should not be surprised, in this final year of the George W Bush
presidency, that the reputation of the Justice Department has reached a
low point. For a long time now, the president's party has had the odd
tic of projecting its own intentions onto its political enemies, and it
seems to project most intensely those desires it holds most dear. For
instance, Republicans have decried the "big government" tendencies of
"nanny state" liberals, even as they themselves have massively expanded
the scope of the federal government. And they have been vocal about
perceived Democratic legal perfidy. Indeed, the 2000 GOP platform was
openly contemptuous in its assessment of the Clinton Justice Department:

The rule of law, the very foundation for a free society, has been under
assault, not only by criminals from the ground up, but also from the top
down. An administration that lives by evasion, cover-up, stonewalling,
and duplicity has given us a totally discredited Department of Justice.
The credibility of those who now manage the nation's top law enforcement
agency is tragically eroded.


As a description of the Clinton Administration, this statement was
preposterous. But as a description of the present-day Justice
Department, it could not be more apt. Every new president comes to
Washington with a policy agenda, of course, appointing officials in the
expectation that they will implement that agenda. And especially since
the end of the Sixties, such red-meat political issues as abortion,
civil rights, and immigration policy have risen to the top of the
law-enforcement agenda. This trend has caused controversy, as it should,
but the controversy is nonetheless democratic. In recent years, though,
these controversies have obscured a larger phenomenon. It is
increasingly clear that Republicans have come to understand the Justice
Department not as "the very foundation for a free society", or even as a
spoils system for issues-oriented voters, but rather as a machine that
utilizes "evasion, cover-up, stonewalling, and duplicity", among other
techniques, to achieve the far more fundamental goal of taking and
maintaining power.

Republicans appear to have been operating under this understanding of
the role of the law in politics since well before Bush took control of
the White House. During the years of the Clinton Administration, for
example, relentless "investigations", demanded by Republicans on Capitol
Hill, created a series of trumped-up "-gates" - Cattlegate, Filegate,
Travelgate - and Kenneth Starr, in his rambling examination of Bill
Clinton's sex life, explored techniques that would inform dozens of
political prosecutions under Bush. These efforts culminated not in
Clinton's impeachment but rather in the 2000 election itself. On
Election Day, the American people chose Al Gore over George Bush by a
margin of 540,000 votes, but in the end only the votes of the Supreme
Court mattered. With the help of five out of five seven
Republican-appointed justices, Bush entered the White House, and it
became clear that political power could be gained through the mechanics
of the justice system itself.

The Republican project of the past seven years has been to build on that
success, to transform the legal apparatus of the United States into an
instrument of partisan force. Each step of that transformation has been
well reported, but few commentators have noted how those steps have in
turn brought about a complete subversion of the original law-enforcement
function of the Justice Department. Indeed, the absence of controversy
demonstrates precisely how successful the administration has been at
mainstreaming its odd notions of justice. And this raises a larger concern.

The last serious attempt to subvert the Justice Department came from
Richard Nixon, who was curbed and shamed. The Watergate era was marked
by criminality, but also by heroism. Attorney General Elliot Richardson
and Deputy Attorney General William Ruckelshaus, for instance, both
resigned rather than carry out a lawless presidential order to fire
special prosecutor Archibald Cox. The Bush transformation, however,
brings us no Richardsons or Ruckelshauses {1}. It has been achieved with
minimum notice, hidden within the noise and chatter of a hundred other
controversies and scandals. The country could conceivably recover from
most of Bush's follies, but the destruction of the legal function itself
will pose a far more serious challenge: In the absence of public
outrage, is it realistic to expect the next president to relinquish the
imperial power bequeathed him (or her) by the last one?


Subverting an entire legal apparatus requires great effort. Laws must be
circumvented, civil servants thwarted, and opposing politicians
intimidated into silence. With an election redecided in the courts,
though, the Bush team was quick to lock in its gains.

The first step was to establish a bureaucracy more in tune with the new
approach. Setting the proper tone would not be simple, though. Justice
had long been seen as a prize for loyal movement conservatives as well
as for the religious right, and both groups expected the department to
be run by ideological warriors willing to risk power in the pursuit of
specific policy goals. Key Bush aides wanted Montana's moderate
governor, Mark Racicot, for the top job at Justice, but movement
conservatives objected and pushed through their own candidate - former
Senator John Ashcroft, an ostentatiously devout evangelical Christian.

Ashcroft eventually would be replaced by Alberto Gonzales, a notably
pure specimen of partisanship, but in the meantime the administration
faced an even more significant obstacle, which was that installing
partisans in career positions is illegal. After a long struggle over a
political spoils system that flooded Washington with partisan hacks,
Congress passed the Pendleton Civil Service Reform Act of 1883, which
generally required that civil servants be hired on the strength of their
professional qualifications and without regard to their party
affiliation or political beliefs. And it strengthened that law
considerably in 1939, when it passed the Hatch Act, which restricted the
involvement of civil servants in partisan political campaigns.

The Bush Justice Department labored to get around these laws in various
ways. The Honors Program and Summer Law Intern Program at Justice, for
instance, has long served as a fast track for students from elite law
schools. Under the Bush Administration, however, the hiring shifted from
the Ivies to avowedly conservative schools. Regent University Law
School, founded by Pat Robertson in 1986, claims to have placed more
than 150 of its graduates in positions with the Bush Administration.
Regent, which ranks among the bottom tier of law schools, struggled to
secure an accreditation with the American Bar Association, just as its
alumni struggle to find employment. Hiring from fourthrate schools is
perfectly legal, of course, and the practice has the additional benefit
of creating a new class of grateful civil servants.

There were less subtle methods as well. Among the loyal young
conservatives at Justice was one Monica Goodling, who received her law
degree from Regent in 1999, spent 2000 doing opposition research for the
Republican National Committee, and was appointed to Justice in 2001. By
2006 she had risen to become a White House liaison working directly out
of the office of Alberto Gonzales. For much of her tenure, Goodling had
a major hiring role at the Justice Department. Her approach was blunt.
The New York Times reports that Robin Ashton, a "seasoned criminal
prosecutor at the Department of Justice", learned from her boss that she
was being passed over for a promised promotion because she had what her
boss called "a Monica problem". The problem was that she "believes
you're a Democrat and doesn't feel you can be trusted". Jack Goldsmith,
a conservative law professor who became head of the Office of Legal
Counsel in 2003, recalled his own interview with a Goodling colleague in
his 2007 book about the Bush Administration. He reports that he was
asked immediately why he had made an $800 campaign contribution to a
law-school colleague who was a Democrat, and that he was also asked,
pointblank, "Are you a Republican?" (He was.)  In congressional hearings
held last May to investigate Justice Department hiring practices,
Goodling cited her Fifth Amendment right not to incriminate herself.
Under a grant of limited immunity, however, she acknowledged that she
"may have gone too far in asking political questions of applicants for
career positions" and that she "may have taken inappropriate political
considerations into account on some occasions".

Goodling resigned from the Justice Department shortly thereafter, but
her hires remain. By 2006, the New York Times reported, Alberto Gonzales
had delegated to Goodling and his former chief of staff, Kyle Sampson,
"the power to appoint or fire all department political appointees other
than the United States attorneys". As we will see, the "Monica problem"
would come to vex the selection even of US attorneys. But for the moment
it is important to note only that career civil servants were being
replaced with hacks who would put loyalty to Bush well above the
traditional functions of the justice Department.


The first priority of the Justice Department, of course, was not
polishing the resumes of fourth-tier law-school grads. It was helping
Republicans at the polls at election time. One of the ways the
department would accomplish this was by restaffing the branch primarily
responsible for making sure Americans are allowed access to the ballot
box - the Civil Rights Division - so that it would work actively to
prevent minorities from voting. The staff then in place would fight such
a subversion with considerable institutional wile, which was why they
had to be replaced. The Washington Post reports that in 2005, nearly
twenty percent of the division's lawyers had left, "in part because of a
buyout program that some lawyers believe was aimed at pushing out those
who did not share the administration's conservative views on civil
rights laws".

One of the views most passionately held by the new administration was
that the business of the Civil Rights Division was not to protect the
franchise of historically disenfranchised minorities but rather to
prevent the scourge of so-called voter fraud. Hans von Spakovsky, who,
as counsel to the assistant attorney general for civil rights, helped
formulate the administration's new voting policies, had in the 1990s
written a policy paper, entitled "Voter Fraud: Protecting the Integrity
of Our Democratic System", that anticipated the new thinking. Spakovsky
proposed that "the greatest democracy in the history of the world" was
"cavalierly undermining the integrity of the most fundamental right its
citizens have - their right to vote in fair elections". This could not
stand.

In 2002, Ashcroft launched a "Ballot Access and Voting Integrity
Initiative". In a speech at the time, he said the initiative was
designed both to deter voter discrimination, a project that had been the
historic basis for the Civil Rights Division's mission, and also to
deter election fraud, which was basically a new mission. It was the
Spakovskian fraud, though, that spurred the greatest heights of
hysterical rhetoric:

Votes have been bought, voters intimidated, and ballot boxes stuffed.
The polling process has been disrupted or not completed. Voters have
been duped into signing absentee ballots believing they were
applications for public relief. And the residents of cemeteries have
infamously shown up at the polls on election day.

Political war stories like these are often told with a grin, but these
failures of our democracy are no laughing matter. There is nothing funny
about winning an election with stolen votes. And there is no occasion
for mirth by the campaigns that commit these offenses. All of us pay the
price for voting fraud.


This was all nonsense. In reality, the Justice Department had decided to
focus on the acts of specific individuals - voters who may have
registered in the wrong district, or who may not have been eligible to
vote because of a criminal conviction, or who may have used a false
identity in order to vote. Of these, only the last category certainly
involves fraud. The others may just as easily be matters of honest
mistakes. More to the point, such acts are incredibly rare - certainly
far too rare to subvert an election. New York University's Brennan
Center for Justice recently completed an extensive survey of Republican
allegations and found that it "is more likely that an individual will be
struck by lightning than that he will impersonate another voter at the
polls". The authors noted as well that "inflated claims are not
harmless" and that "claims of voter fraud are frequently used to justify
policies that do not solve the alleged wrongs, but that could well
disenfranchise legitimate voters".

Chief among those policies is a proposed national voter ID law, which
most analysts believe would have the effect of suppressing turnout among
minorities and other traditionally Democratic-leaning voters. But
voter-fraud investigations can also have a suppressive effect in and of
themselves.

Republicans discovered this almost immediately upon launching their
initiative. The sole large-scale criminal investigation to take place in
the wake of the 2002 congressional elections was a total bust in terms
of arresting fraudulent voters, but it appeared nonetheless to have had
positive long-term consequences for Republicans. When Tim Johnson, one
of South Dakota's two Democratic senators, defeated his Republican
challenger, John Thune, by a tiny margin of 532 votes, the Republican
reaction was to launch an investigation into the voting activity at
several Indian reservations, the citizens of which traditionally had
voted for Democrats. Indian Country Day reported that "Republican
attorneys fanned out across the state" in order to "gather affidavits to
show voting irregularities", but that "of the fifty affidavits the
Republican operatives collected, only three alleged criminal activity,
and two of those proved to be false". Two years later, though, Thune ran
against South Dakota's other senator, Minority Leader Tom Daschle. And
in that election, supposedly fraud-wary Republican poll-watchers were
now emboldened to follow Indian voters and write down their
license-plate numbers. A federal judge ordered them to stop, and they
finally did, but Thune won the election in the end, by 4,508 votes.

Logical inference would suggest that suppressing votes and creating an
environment in which a national voter ID law could be enacted was the
true motive of the Justice Department initiative. (Indeed, just this
past January, the Supreme Court heard arguments about the
constitutionality of an Indiana voter ID law.) But logical inference is
not necessary in this case. The former political director of the Texas
Republican Party, Royal Masset, actually told the Houston Chronicle in
2007 that it is an "article of religious faith that voter fraud is
causing us to lose elections", but then acknowledged that such faith was
unfounded. What he did believe, according to the Chronicle's,
paraphrase, was that "requiring photo IDs could cause enough of a
drop-off in legitimate Democratic voting to add three percent to the
Republican vote".

The final proof that the Civil Rights Division enforces the law in a
selective manner is that the Justice Department rarely pays attention to
Republicans. Both Karl Rove, who as White House political director
oversaw much of the Justice Department transition, and Republican
commentator Ann Coulter were reported as having committed possible voter
fraud, on the basis of their having voted in districts other than those
in which they maintained their principal domicile. In Rove's case, no
prosecutorial action was taken. Coulter's case was somewhat more
complex. The Palm Beach County Sheriffs Office began an investigation,
only to call it off after receiving a call from the FBI corroborating an
odd and irrelevant claim: Coulter had been unforthcoming about her true
address because she had wanted to hide her whereabouts from a stalker.


The American system of democracy has many defenses, and the Bush
Administration overcame each of them in turn. It was not enough simply
to control the bureaucracy. High officials as well had to understand
that their function was not to enforce the law but rather to express the
will of the president. The next step, then, would be to discipline the
US attorneys.

The US attorneys serve ninety-three judicial districts and report
directly to the attorney general. They prosecute all criminal cases
brought by the federal government and defend all civil cases in which
the United States is a party. In that there are so few of them, they are
almost uniquely powerful, akin to members of the Senate. They are
appointed by the president and by tradition serve a minimum of four
years. This tradition was upended when Attorney General Gonzales, on
Bush's authority, sacked seven US attorneys on December 07 2006. No
explanation was given at first, and the maneuver itself was made
possible only by an obscure provision in the 2005 reauthorization of the
USA PATRIOT Act.

The case of Albuquerque US Attorney David Iglesias makes clear the
thinking behind the firings. Iglesias was born in Panama, where his
father belonged to an indigenous tribe. He financed his law-school
education by joining the Navy and becoming a JAG officer, and he first
appeared on the public scene in connection with a highly unusual
court-martial at Guantanamo that later furnished the plot for the Aaron
Sorkin play A Few Good Men. (The Iglesias role was played in the film
version by Tom Cruise.) In 1998, Iglesias was narrowly defeated by
Democrat Patricia A Madrid in a bid to become New Mexico's attorney
general. When the Republicans came to power in Washington, though,
Iglesias was recognized as a rising star and quickly appointed as a US
attorney.

For five years, Iglesias achieved distinction for his work as a
prosecutor, but in 2006, as the midterm elections approached, things
turned very sour. New Mexico is one of the dozen states in which
national elections are decided. In 2000 the state went for Gore. In 2004
it went for Bush. In both elections the margin of victory was paper-thin
and highly disputed. And Iglesias, like other US attorneys, was expected
to push aggressively against "voter fraud". Iglesias did so and was
recognized for his efforts. In 2004 he reacted to Republican complaints
about a highly effective voter-registration program run by a grassroots
activist organization, ACORN, by creating a special task force of FBI
agents and prosecutors to fully investigate the allegations. He was
selected for the faculty of the Justice Department's October 2005 Voting
Integrity Symposium, at which more than a hundred prosecutors were
trained in handling fraud cases. But that wasn't enough.

Iglesias says that he received a series of odd calls in October 2006.
The first was from Congresswoman Heather Wilson, who was locked in a
close contest with her Democratic challenger in the upcoming midterm
election. The second call was from Republican Senator Pete Domenici, the
powerful longtime chair of the Senate Budget Committee. Iglesias later
described the exchanges in a New York Times op-ed column, headlined "Why
I Was Fired":

Ms Wilson asked me about sealed indictments pertaining to a politically
charged corruption case widely reported in the news media involving
local Democrats. Her question instantly put me on guard. Prosecutors may
not legally talk about indictments, so I was evasive. Shortly after
speaking to Ms Wilson, I received a call from Senator Domenici at my
home. The senator wanted to know whether I was going to file corruption
charges - the cases Ms Wilson had been asking about - before November.
When I told him that I didn't think so, he said, "I am very sorry to
hear that", and the line went dead.

Why was the timing of this indictment so important? Domenici, who was
seventy-five and nearing retirement, had a protegee and possible
successor in Congresswoman Wilson. But Wilson was then locked in a tough
battle with (of all people) Patricia A Madrid, then serving her second
term as New Mexico's attorney general and looking to move onto the
national stage. Wilson had based her campaign against Madrid around the
idea that Madrid had been ineffective in combating corruption in New
Mexico's state government. The indictment would therefore have provided
exactly the kind of attack-ad fodder Wilson needed. Iglesias's decision
to adhere to proper procedure denied her that boost. Even so, Wilson
pulled out a narrow win. (She is now running for Domenici's Senate seat.)

Had Iglesias indicted the Democrat, he would have violated his ethical
obligations as a prosecutor and committed a felony. Instead, he held
rigorously to the rules, which forbid a US attorney from manipulating
prosecutions in order to attempt to affect election contests. But in the
Bush Administration, putting fidelity to the law ahead of the GOP's
election efforts was, a career-ending move. New Mexico's Republican
Party chairman, Allen Weh, complained about Iglesias to Rove, according
to McClatchy Newspapers, and Rove said: "He's gone". This was a fairly
significant breach of tradition, though, and it took some persistence.
The Albuquerque Journal reported that Domenici asked Gonzales to fire
Iglesias, but Gonzales refused. Domenici then met with President Bush,
who made, the final call.

The other US attorneys fired in December have similar stories to tell.
Paul Charlton of Phoenix had pursued investigations involving two
Republican lawmakers. Dan Bogdan of Las Vegas had been looking into
charges against a Republican congressman then running for governor.
Seattle's John McKay had failed to rally to the side of the GOP in a
recount controversy and had not pursued the "voter fraud" scam with
sufficient vigor. San Diego's Carol Lam was handling a highly
embarrassing fraud investigation focusing on senior political appointees
at the CIA as well as two Republican congressmen. But even more
troubling is the case of several US attorneys who were preliminarily
listed for removal but then retained. Two of them - Milwaukee's Steve
Biskupic and Dunnica Lampton of Jackson, Mississippi - brought
politically charged corruption indictments involving Democrats during an
election cycle, clearly with the intention of directly influencing the
elections for the benefit of the GOP. Each secured a conviction, though
Biskupic's case was subsequently overturned in an extraordinary opinion
of the Court of Appeals, the key word of which was "preposterous".
Lampton's prosecution, which targeted Mississippi's largest Democratic
donor, is now on appeal. Both Biskupic and Lampton received a reprieve -
they could continue serving as US attorneys - thereby reminding us that
it is not the terminated US attorneys who should be a subject of concern
as much as it is those who were kept on.


All of these steps were helpful to the Republican Party. But even with
hacks in place, minorities disenfranchised, and dissenters punished into
submission, voters could still be expected to put a Democrat into office
from time to time. In these extreme cases, though, the Justice
Department could once again be counted on for a remedy.

In 2007, Donald Shields and John Cragan, two retired professors,
released the preliminary results of a long-term study of the Bush
Justice Department's investigations of public officials. They found that
between 2001 and 2006 the Justice Department had initiated 375
investigations of public officials. They also found that 298 of those
investigations targeted Democrats and 67 of them targeted Republicans.
Shields and Cragan concluded that the odds of this imbalance occurring
randomly were one in ten thousand.

One of those 298 Democratic targets was former Alabama Governor Don
Siegelman. Arguably the most successful Democratic politician in recent
Alabama history, Siegelman had occupied almost every statewide elective
office, frequently winning by large margins. He was elected governor in
1998 with a 57 percent majority. In 2002, however, Siegelman faced a
strong challenge from Republican Bob Riley. The election was the closest
in the state's history, and was ultimately called for Riley following a
late-night "computer glitch" that moved votes on just one line - that of
the gubernatorial contest - enough to reverse the outcome of the race. A
study the following year by Auburn University's James Gundlach strongly
suggested "systematic electronic manipulation". But this electoral
oddity remains unexamined by the Justice Department.

Later that year, however, as the Mobile Press-Register was publishing a
poll that showed Siegelman trouncing Riley in a rematch, the Department
of Justice finally took action. It launched an investigation of
Siegelman. The case was based on allegations that Siegelman had
appointed Richard Scrushy, the CEO of the Birmingham-based health-care
firm HealthSouth, to an uncompensated hospital-oversight board as a quid
pro quo for Scrushy's having arranged a $500,000 contribution to a 1999
initiative to promote a state lottery bill favored by Siegelman. There
were several problems with the case. First, the contribution itself was
legal. There was no payment to Siegelman, or even to his campaign. Also,
Scrushy didn't support Siegelman in the election. He was a Republican
and had backed Riley. In addition, Scrushy had been appointed to the
same board by three prior governors. And finally, according to his own
uncontradicted testimony, Scrushy didn't even want the appointment.

It was a clear case of selective prosecution - and if the theory applied
to the Siegelman prosecution were to be applied uniformly, many in the
Bush Administration would now be in prison. George W Bush singled out
146 individuals who gave or gathered $100,000 (to his actual political
campaign) for appointment to far more desirable postings as ambassadors,
cabinet officers, or members of his transition team. Not a single one of
these appointments triggered a Justice Department investigation.

Siegelman became the target of two criminal investigations by two US
attorneys before two federal judges. In 2004 he was told that, although
a couple of issues remained, the investigations were in the process of
being wrapped up. But then, as the 2006 gubernatorial election
approached, the case was dusted off and resumed. Even before the trial
came about, Siegelman's reputation had been demolished by a steady
process of venomous leaks to the press, which could only have come from
sources close to the prosecution. Siegelman was convicted in May 2006 on
a series of corruption charges, and Riley coasted to an easy reelection
the following November.

Putting one's political enemies in prison is serious business, however,
and not everyone in the Alabama Republican Party thought it was a good
idea. After Siegelman's conviction, Dana Jill Simpson, a Republican
attorney and election volunteer, gave an affidavit to Scrushy's
attorneys describing the process whereby Siegelman had been imprisoned.
Her motivation, according to her later testimony before the House
Judiciary Committee, was that she "thought it was the right thing to
do". Simpson described a plan by a group of Alabama Republicans, joined
by Karl Rove and using the Department of Justice, to eliminate Siegelman
as a threat. In one conversation, Simpson quotes William Canary - the
state's most important Republican campaign adviser and a longtime friend
of Karl Rove's - as stating that "Karl" had given his assurance that the
Justice Department would target Siegelman so that he would no longer be
a problem. "My girls" would do the job, Canary said, referring to his
friend, Alice Martin, who was the US attorney in Birmingham, and his own
wife, Leura, who was the US attorney in Montgomery. In fact both Martin
and the office of Canary brought cases against Siegelman, although
Canary was later forced to formally recuse herself.

Simpson also testified that Rob Riley, the son of the governor, told her
well before the Siegelman case began that a specific judge had been
preselected to handle it: Bush appointee Mark Everett Fuller. After the
trial, it was revealed that Fuller had been a member of the Executive
Committee of the Alabama GOP while Siegelman was governor. Before his
appointment to the federal bench, Fuller had charged that a critical
audit of his records from his own service as district attorney had been
"politically motivated" - by the Siegelman administration. Fuller was
asked to recuse himself. He refused. At a June 2007 hearing, Fuller
sentenced Siegelman to over seven years' imprisonment. He also denied
Siegelman his freedom pending appeal, ordering him to be manacled in the
courtroom and taken straight to prison.

The Siegelman case is now on appeal. In an unprecedented move, more than
fifty former state attorneys general - many of them Republicans - signed
a petition requesting that Congress undertake a special investigation of
the prosecution and trial. The House Judiciary Committee conducted
hearings on October 23 and, Chairman John Conyers tells me, is still
looking into the matter {2}.

The Siegelman case does not stand alone. In neighboring Georgia and
Mississippi, suspiciously similar charges were brought by federal
prosecutors. In Georgia the State Senate majority leader, Democrat
Charles Walker, was charged on several corruption counts. An internal
Justice Department probe actually concluded that the investigation had
been politically motivated. In Mississippi a case was brought against
the Democratic Party's largest funder and three Democratic judges.
Whether or not the prosecution was designed to defund the Mississippi
Democrats, it had that effect. In a number of other cases, the Justice
Department is proceeding with amazing vigor and heavy-handedness against
trial lawyers around the country who committed the crime of attempting
to raise money for the campaigns of Democrats John Edwards and Hillary
Clinton.

All of these prosecutions have been high-profile matters, fanned to the
press, consuming tens of millions of dollars in prosecutorial resources.


The current situation is not unprecedented. The bitter partisan
rivalries of the 1790s saw the machinery of justice put to merciless
use. The Federalists felt that all levers of government could
legitimately be used to advance and secure the political interests of
their party. At a time when there was no real war, the Federalists
fomented a public climate of wartime crisis. Their party pushed for
military engagement on the side of Britain and against France and
insinuated that Democratic-Republicans (as the Democrats were then
known) were disloyal and possibly even treasonous on account of their
well-known sympathy for French revolutionaries. At the same time, the
Federalists worked to incite fear of immigrants, particularly the Irish,
whom they tarred as alcoholic revolutionaries. Under President John
Adams, the Federalists assumed sweeping powers to lock up and deport
immigrants, but perhaps their most significant attempt to turn the legal
system to political advantage was the passage of the Alien and Sedition
Acts.

The Sedition Act is notable for its clarity of intent and is worth
quoting at some length:

And be it further enacted, That if any person shall write, print, utter,
or publish, or shall cause or procure to be written, printed, uttered or
published, or shall knowingly and willingly assist or aid in writing,
printing, uttering or publishing any false, scandalous and malicious
writing or writings against the government of the United States, or
either house of the Congress of the United States, or the President of
the United States, with intent to defame the said government, or either
house of the said Congress, or the said President, or to bring them, or
either of them, into contempt or disrepute; or to excite against them,
or either or any of them, the hatred of the good people of the United
States, or to excite any unlawful combinations therein, for opposing or
resisting any law of the United States, or any act of the President of
the United States, done in pursuance of any such law, or of the powers
in him vested by the Constitution of the United States, or to resist,
oppose, or defeat any such law or act, or to aid, encourage or abet any
hostile designs of any foreign nation against the United States, their
people or government, then such person, being thereof convicted before
any court of the United States having jurisdiction thereof, shall be
punished by a fine not, exceeding two thousand dollars, and by
imprisonment not exceeding two years.


More than two dozen people were arrested under the Sedition Act, most of
them prominent Democratic-Republican newspaper editors and writers. Some
of them, such as Thomas Adams, the publisher of the Boston Independent
Chronicle, spent several months in jail; he had accused President Adams
of nepotism for sending his son as ambassador to France and had
questioned the salaries paid to both. In the case of Thomas Adams and
others, the truth of the assertions published was not accepted as a defense.

The bulwarks the system offered against political abuse were few and
unreliable. They were: the notion of an independent, professional
prosecutor, insulated from political direction; an independent
judiciary; and a jury system. In the Federalist age none of these checks
worked, because the prosecutors and the judges were loyal, committed
Federalists, and they very effectively pressured and cajoled juries to
do their bidding.

Still, the Federalists' use of these tools had repercussions. Thomas
Jefferson, eyeing the suicidal excesses of the Federalists, exhibited an
interesting mixture of anxiety, confidence, and resolve in a
confidential letter to his friend John Taylor:

A little patience, and we shall see the reign of witches pass over,
their spells dissolve, and the people, recovering their true sight,
restore their government to its true principles. It is true that in the
meantime we are suffering deeply in spirit, & incurring the horrors of a
war and long oppressions of enormous public debt ... And if we feel
their power just sufficiently to hoop us together, it will be the
happiest situation in which we can exist. If the game runs sometimes
against us at home we must have patience till luck turns, & then we
shall have an opportunity of winning back the principles we have lost,
for this is a game where principles are the stake.


In 1800, Jefferson took the White House from Adams, and the
Democratic-Republicans took a strong majority in the House of
Representatives. That hold would endure for twenty years. Most
historians today see the demise of the Federalist Party originating in a
series of unpopular policies - including high taxation and the
maintenance of a standing army - but its penchant for political
prosecutions embittered the electorate in most places where it was
pursued and proved decisive in alienating entire districts. Had it not
been for political prosecutions, the Federalist Party might have survived.

The same could yet hold true for modern Republicans. History may view
the Bush Administration's transformation of the Justice Department as an
aberration the voters will set right at the next election. There is an
equally good chance, however, that Bush has reverted to the historical
norm, that government of the people, by the people, for the people is
the exception. After all, Federalist attitudes toward executive power
have lasted far longer than the party itself. And for all his advocacy
of a free press, even Jefferson advised the commencement of
seditious-libel proceedings against certain political enemies, noting
that "a few prosecutions of the most prominent offenders would have a
wholesome effect in restoring the integrity of the presses".


The next president can learn much, in any case, from how the
Democratic-Republicans made robust use of executive power to right the
wrongs they felt had been done to them. They quite reasonably had no
confidence that the judiciary would undo on appeal the injustices
perpetrated against Democratic-Republican leaders by Federalist
prosecutors and trial judges. After all, most of the appellate judges
were themselves still Federalists as well. So the two dozen
Democratic-Republican leaders who had been jailed or convicted received
pardons. Congress voted many of them apologies and compensation for
their mistreatment. Federal prosecutors and judges who had participated
in the excesses were investigated, and most prosecutors were replaced.
This furnishes the most practical historical precedent for addressing
the current abuses.

But the Bush Justice Department demonstrated its power in supporting a
partisan electoral agenda and in outfitting the executive with
extraordinary and extra-constitutional powers. Is it realistic to think
that any new occupant of the White House would surrender those powers?
The American historical experience on this point is clear: once a power
or prerogative is successfully asserted by a president, his successors
have generally guarded that power carefully, whether they make actual
use of it or not.

The one tool that has been wielded successfully in the retrenchment of
presidential power is impeachment. There are three noteworthy
precedents. The first was the House's resolution of censure and threat
of impeachment against President James Knox Polk for having invaded
Mexico. Congress became far more aggressive in the wake of this
resolution, limiting Polk's authority and making sure there were no more
"strong presidents" before the Civil War. The second was the impeachment
of President Andrew Johnson. The impeachment effort had its origin in
the conflict between the radical Republicans and the moderate and
conciliatory policies of Johnson, but it also should be seen as a
curtailment of the dramatically enhanced presidential authority asserted
by Abraham Lincoln - precedent that routinely is invoked by the Bush
Administration today. Johnson was impeached by the House and acquitted
by the margin of a single vote in the Senate. The third case was the
Watergate-era impeachment effort directed against Richard Nixon, which
focused on Nixon's claims to extraordinary war-making powers, his claims
to executive privilege, and the underlying offenses connected to the
Watergate cover-up. The House Judiciary Committee voted 21-17 to bring
articles of impeachment against Nixon, who then resigned to avoid a
certain conviction.

Bush's assumption of presidential authority includes assertions of
executive power at least as expansive as those put forward in the Polk,
Lincoln, and Nixon presidencies. Of the three, Lincoln alone could
convincingly claim as justification an existential threat against the
country. Bush attempts to copy Lincoln's claim, but his efforts are
unconvincing.

It is improbable that any contender who prevails in the 2008
presidential election will renounce the Bush model of a redefined
presidency. A newcomer will likely differentiate his (or her) policies
on a number of points, pulling back somewhat from positions (such as the
presidential right to torture or wage preemptive war) that have drawn
sharp criticism. But these changes will be introduced as a matter of
presidential policy, not because the president is bowing to law defined
by Congress or to constitutional constraints.

Our Constitution provides a mechanism for countering transformational
excess, but the people's representatives thus far appear to have decided
that the impolite process of impeachment is only for presidents who have
affairs. Given this failure of will, we must be prepared to accept a
changed system in which the will of the people is subsumed by good
manners and fearful politics. As long as this new democracy prevails,
little will matter beyond the will of the president.

Notes:

{1} I had high hopes that the new attorney general, Michael Mukasey,
whom I have known for twenty years, would be such a man. We do not share
an ideology, but in the past he has proven an able advocate for the rule
of law. As of this writing, however, he has done little to change the
direction of the Justice Department. In particular, he has refused to
acknowledge that waterboarding is torture, likely because doing so would
require that he investigate the actions of the man who appointed him.
Mukasey has the opportunity to be a Ruckelshaus or a Richardson, but he
could also follow the path of Robert Bork, who first came to prominence
when he accepted Richard Nixon's appointment as acting attorney general,
and promptly followed the president's order to fire Cox.

{2} For an in-depth and ongoing investigation of the many issues related
to the increasingly complex Siegelman case, see my weblog, No Comment,
at www.harpers.org.
_____

Scott Horton, an attorney in New York City, writes the daily weblog No
Comment for Harpers.org. His last article for Harper's Magazine, "State
of Exception", appeared in the July 2007 issue.

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