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Ex-AGs Weigh Justice and Politics

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Photo by Robert E. Potter III.
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Six former U.S. attorneys general, who served under four different presidents in the past 30 years, expressed serious concerns about proposed investigations into interrogation techniques employed—but now abandoned—in the war against terrorism.

What kept a standing-room audience rapt at the 2009 ABA Annual Meeting in Chicago, how­ev­er, were the tales of manag­ing 93 independent-minded U.S. attorneys posted through­out the country while coping with the turf battles inev­itable in a powerful White House.

John Ashcroft, who was attorney general under Presi­dent George W. Bush, said it was important to remember that “the president isn’t above the law, but he is above you.”

At the other end of the spectrum, William P. Barr, who also served in the first Bush administration, warned against a “cult of individual line prosecutors” whose enforcement actions must be managed by the attorney general.


Prompted by questions from litigation section chair robert l. Rothman of Atlanta, the former AGs had plenty to say about issues already bearing down on the new attorney general, Eric H. Holder Jr.

They were generally dubious about a possible Justice Department investigation into tactics used during the second Bush administration to interrogate suspected terrorists.

Since there is little likelihood that any prosecutions will result, “the better thing is to let the record stand where it stands. The facts already are pretty well-known,” said Benja­min R. Civiletti, attorney general under President Jimmy Carter.

Edwin Meese III, who served under Reagan, said that investigating actions by a previous administration would raise serious questions about political motivations. Moreover, Meese said, prosecuting lawyers for their opinions “is a very dangerous precedent.”

The former attorneys general generally agreed that the firing of several U.S. attorneys by the second President Bush in 2006 was a politically ill-conceived action.

While the firings were within the president’s power, a lot of actions that are not illegal may seem dumb when done for the wrong reasons, said Meese, “and it seems like this was one of those dumb things.”

But they also emphasized the need for the attorney general to effectively supervise subordinates, especially U.S. attorneys tempted to follow their own agendas. They pointed to the prosecution of former Sen. Ted Stevens of Alaska, which was recently ended by Holder.

“If someone is making political prosecutions, I hope you will interfere,” Ashcroft said. “Sometimes the best decision of all is the decision not to prosecute.”

Michael B. Mukasey, who was attorney general at the end of the second Bush’s term, downplayed ri­valries between the attorney general’s office and the office of legal counsel in the White House, which is technically part of the Justice Department.

“It’s a very talented group,” he said, “and they stop a whole lot of bad ideas.”

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