President-elect Trump’s decision last week to nominate Sen. Jeff Sessions to serve as America’s 84th Attorney General signals a return to a Justice Department that reflects a more traditional, real-crimes based approach to federal law enforcement policy, as opposed to the control-oriented, social policy-heavy approach under which that Department has operated for the past eight years.
The fact is, the Department of Justice, when formally established in 1789, was not meant to serve as the heavy-hand of law enforcement; but rather as a relatively small federal agency to focus limited federal resources on the handful of crimes that truly were “federal” in nature – forgery, immigration, interstate fraud, customs matters, robbery of federal facilities, and the like.
Understandably, over the decades as the size and scope of the federal government has grown, so has the Justice Department in size and responsibilities. Unfortunately, during the past four decades or so, one Administration after another, and one Congress following another, have been unable to resist the urge to keep adding to that list of “federal crimes,” so it now numbers in the thousands; over 4,500 according to some estimates. The current Administration has taken that ball and run with it.
While many of the thousands of attorneys working for the Department are top-notch, and continue to investigate and prosecute crimes that the average citizen would understand as constituting crimes that properly should consume the time and resources of Uncle Sam – complex white collar fraud cases, and multi-state and international drug cases, for example – more and more, those attorneys are being directed by the Attorney General to involve themselves in matters of quite a different nature. An increasing number of these cases are regulatory in nature; often of the sort that a civil (that is, non-criminal) approach not only would suffice to rectify the problem, but better serve the ends of justice.
An illustration of the manner in which federal criminal laws can be easily abused to reach conduct not clearly federal in nature, or at best, actions that are not reflective of clear federal priorities, was the “Bridgegate” case involving former associates of New Jersey Gov. Christie. To be sure, Christie’s former associates clearly abused their power as political officials when they caused massive back-ups at a key bridge going into New York City for a couple of days. However, treating the case as a major federal criminal case, including alleging violations of civil-rights era laws with which to punish Christie’s idiotic underlings, represents the type of mis-prioritization of resources that needs to be addressed at the Department.
More broadly, the manner in which the Justice Department for eight years under President Obama has handled civil right cases, illustrates a troubling shift in focus and priority.
Under prior Administrations, going back to the Reagan Administration, federal prosecutors never hesitated to press cases against local, state or federal law enforcement or other officials, who violated individuals’ civil rights. This was an important component of federal law going back decades. If a local police officer employed excessive or deadly force against an individual without justification and, for example, based on racial discrimination, the FBI would be called on to investigate and if the elements of a case were present, the U.S. Attorney would prosecute; occasionally attorneys from the Civil Rights Division at the Department might become involved. But the point to such prosecutions was to protect the victim’s rights and punish the guilty official.
In contrast, as often as not in today’s Obama Justice Department, every such case becomes an opportunity not simply to punish wrongdoing, but to “teach police departments a lesson.” The overriding goal appears to be to place control of those agencies and individual officers under the federal agency.
This trend toward federalizing crime and the administration of criminal justice is troubling and contrary to fundamental standards of our system of federalism in America; and it is demoralizing to local and state police agencies and officers who increasingly are forced to carry out their demanding and dangerous work with Uncle Sam looking over their shoulder ready to yell, “gotcha!”
Speaking of priorities, no less important a person than the current Attorney General, Loretta Lynch, has been spending her time fretting over whether the Constitution of the United States ought be invoked as a basis to involve the Justice Department in the “transgendered bathroom” debate that began flourishing this year.
I suspect her successor, if confirmed by the Senate, will spend far less time beating up on police departments and worrying about transgendered bathrooms; and far more time focusing on protecting the American people against serious criminal activity.