Partisanship and the Attorney General of the United States: Timely Lessons from Edward Levi and Griffin Bell About Repairing a Politicized Department of Justice

• Jurisdiction: United States,Federal
• Publication year: 2021
• Citation: Vol. 72 No. 3

Partisanship and the Attorney General of the United States: Timely Lessons from Edward Levi and Griffin Bell about Repairing a Politicized Department of Justice

Patrick E. Longan

Mercer University School of Law, LONGAN_P@law.mercer.edu

James P. Fleissner

Mercer University School of Law, fleissner_jp@law.mercer.edu

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Partisanship and the Attorney General of the United States: Timely Lessons from Edward Levi and Griffin Bell about Repairing a Politicized Department of Justice

by Patrick E. Longan^*

and James P. Fleissner^**

I. Introduction

The proper role of the Attorney General of the United States has been much in the news in recent years. William Barr received scathing criticism for how he handled the Mueller Report regarding Russian interference in the 2016 election; the sentencing of President Trump's associate, Roger Stone; the charges against President Trump's first national security adviser, Michael Flynn; and numerous other matters.¹

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Mr. Barr's critics accused him of perverting his office from one that served the rule of law in a nonpartisan fashion into one that catered to President Trump's personal and political desires.² Many of these critiques condemned Barr's flouting of the traditional norms of the Department of Justice that exist to guard against its politicization.³

Mr. Barr was not the first Attorney General to be accused of allowing the Department of Justice to be politicized. Woodrow Wilson's Attorney General allegedly conducted a series of unconstitutional "raids" on political dissidents for the purpose of furthering his political ambitions.⁴ Several presidents appointed Attorneys General who had

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held senior positions in their presidential campaigns.⁵ George W. Bush's Justice Department engineered the firing of numerous U.S. Attorneys, allegedly for political reasons, and produced legal opinions that justified the administration's use of torture.⁶ Eric Holder, President Obama's first Attorney General, described himself as the President's "wing-man."⁷ Obama's second Attorney General, Loretta Lynch, suffered withering criticism for meeting with former President Bill Clinton while Hillary Clinton was under investigation by the FBI.⁸ Claims that the Department of Justice and the Office of Attorney General have been politicized have been common throughout our history and, in all likelihood, will continue to be so.

In recent times, the most egregious politicization of the Office of Attorney General, at least until Barr came along, occurred during the Nixon Administration.⁹ President Nixon's first Attorney General, John Mitchell, was the President's close personal friend, former law partner, and campaign manager.¹⁰ He went to prison for his role in the

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Watergate scandal.¹¹ Mitchell's successor, Richard Kleindienst, pled guilty to lying to Congress about President Nixon's attempted interference with an antitrust case.¹² When events related to Watergate forced Kleindienst's resignation, the President appointed Elliot Richardson, who chose to resign several months later when the President ordered him to fire Archibald Cox, the Watergate Special Prosecutor.¹³ Throughout the Watergate investigation, Henry Petersen, the Assistant Attorney General in charge of the Criminal Division during the Nixon Administration, served as an "open conduit" of information about the investigation to the President and his aides as the Watergate cover-up proceeded.¹⁴ Petersen felt the need at one point to tell the press, "I'm not a whore,"¹⁵ but he later reflected, "If I had to say what the greatest crime of the Nixon administration was, I'd have to say it was the public's loss of confidence in the government, in the Justice Department. It's a lot harder to regain confidence than to lose it."¹⁶

In the aftermath of the Nixon Administration, both President Ford and President Carter made commitments to depoliticize the Department of Justice and to try to heal the scars left by Watergate.¹⁷

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President Ford chose Edward H. Levi, a legal scholar and President of the University of Chicago, to serve as Attorney General. President Carter turned to Griffin Bell, a Georgia lawyer who had served for almost fifteen years on the United States Court of Appeals for the Fifth Circuit.

On a personal level, Levi and Bell were remarkably different. Levi was a bow-tied academic who spent most of his working life at the University of Chicago.¹⁸ He had an earned reputation for being "prickly."¹⁹ In contrast, Judge Bell was a gregarious raconteur who, it was said, "could light up any room with his personal warmth and entertain all with his stories drawn from a life of incredible depth and breadth."²⁰ These two very different men were asked by the presidents who appointed them to do the same thing: to restore the credibility and morale of the Department of Justice in the wake of Watergate.²¹

The historical judgment is that they succeeded. In the 1970s, Congressman Pete McCloskey opined that President Ford's "greatest contribution to the Nation may perhaps turn out to be his appointment of the nonpolitician, Edward Levi, as Attorney General—and the preserving of the Attorney General's independence from presidential influence in matters of political concern . . . ."²² McCloskey stated that with the appointment of Bell, President Carter "continued the tradition of independence . . . ."²³ In 2018, a columnist in the New York Times wrote: "[F]or all their differences, Levi and Bell came to share a

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mission. Together they created the modern Department of Justice and, more important, the modern American idea of the rule of law . . . ."²⁴ More recently, at the press conference at which President Biden introduced Merrick Garland as his nominee for Attorney General, Judge Garland noted that when he took his first job at the Justice Department in the late 1970s, "Ed Levi and Griffin Bell, the first attorneys general appointed after Watergate, had enunciated the norms that would ensure the department's adherence to the rule of law."²⁵

The deeper question is how Levi and Bell accomplished that task. They did not do so by sitting in their offices and exuding integrity. Levi had to deal with the issues of the day, including Watergate prosecutions, busing, gun control, intelligence gathering, an appointment to the Supreme Court of the United States, criminal justice reform, and the Presidential campaign of 1976. Levi once described the job as "one damn thing after another."²⁶

The same was true for Bell. He had to make decisions whether to investigate and prosecute powerful Congressmen and high officials of the FBI and CIA. He helped formulate the government's position in politically explosive cases involving affirmative action, civil rights, and the handover of the Panama Canal.²⁷ The lessons of how Levi and Bell restored the Department of Justice and the Office of Attorney General

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are not abstract. The lessons are instead embedded in the way Levi and Bell conducted themselves in office.

Those lessons, whatever they may be, are not just of academic interest. Levi presciently noted that the day might come when another Attorney General would have to build the Department of Justice back up after a period of politicization. In his farewell address to Department employees on January 17, 1977, as he was about to hand over the leadership of the Department to Bell, Levi said, "We have shown that the administration of justice can be fair, can be effective, can be non-partisan. These are goals that can never be won for all time. They must always be won anew."²⁸ Senator Abourzek gave the same warning in a more colorful way during the confirmation hearings for Griffin Bell: "There might be a future Richard Nixon, God forbid."²⁹ An understanding of how Ed Levi and Griffin Bell led the Department of Justice back from the wreckage of Watergate will be useful whenever the time comes to "win anew" the goal of a nonpartisan, depoliticized Department of Justice.

In the eyes of many observers, we have now entered one of those times. William Barr's conduct as Attorney General led thousands of former officials to call for his resignation, first for his handling of the Roger Stone case,³⁰ and later for his actions in connection with the Michael Flynn case.³¹ There were calls for Barr to be impeached.³² Some of Barr's own prosecutors resigned from positions, cases, and even from government service rather than support some of his actions.³³ Barr left

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the credibility and morale of the Department of Justice in tatters.³⁴ When it emerged that then-President-elect Joe Biden intended to nominate Judge Merrick Garland to serve as Attorney General, it was reported that "Garland's selection also echoed the decision in 1975 by President Gerald Ford to tap Edward H. Levi, a legal scholar and president of the University of Chicago, to restore credibility to the department in the post-Watergate era."³⁵ This is a time when the lessons of Levi's and of Bell's service will prove useful.

The purpose of this Article is to start the process of discerning those lessons for use now and any future time when an Attorney General takes office in the aftermath of a period of politicization of the Department of Justice. Part II provides background about the Office of the Attorney General and describes the distinction between an Attorney General's roles in "politics" as policy and "politics" as partisanship. Part III discusses the specific circumstances of the Watergate scandal and how it affected the Department of Justice. In Parts IV and V, we examine one episode from Levi's time as Attorney General and one from Bell's tenure, as examples from which future Attorneys General might learn. There is not enough room in one article to examine all of the issues they faced, but we hope that the two episodes we have chosen are instructive.

Professor Daniel Meador, who served in the Department of Justice in the Carter...