BREAKING: New DOJ Communications Guidelines Emphasize DOJ Independence

Ask, and ye shall receive. Guess who got her hot little hands on the new DOJ "Communications Guidelines for Contact with the White House and Congress" from a source in the know?

The memo is fairly new, dated May 11, 2009. And not yet available online that I’ve been able to find.

So you get a first peek along with me.

We’ve put the full four-page memorandum up here as a PDF for your perusal.

There are several points I want to highlight, so I’m going to walk through the full memo in brief. I’d note that the memo was developed in full consultation with the WH Counsel’s office as well. Good for them.

First, AG Holder emphasizes the rule of law and the importance of DOJ independence up front:

The legal judgments of the Department of Justice must be impartial and insulated from political influence. It is imperative that the Department’s investigatory and prosecutorial powers be exercised free from partisan consideration….

I’m gonna call this the Rove Rule: no political hands in the justice till, thank you very much.

DOJ took a huge hit from the prior administration’s politicization — real or implied. It’s all the same if it taints the perception and trust of the jury pool for the line prosecutors who are trying cases. And that loss of trust will take a long time to rebuild, even for cases of violent crime where convictions are necessary for public safety.

Which puts every community in this country potentially at risk because of base political motives. Beyond reckless.

I’m pleased to see the DOJ explicitly making clear that is no longer going to be tolerated.

Back to the memo, though, where there is a decided emphasis on DOJ leadership and prosecutors being the ones who determine whether an investigation or prosecution is warranted — and no one else.

The memo references Berger v. US, wherein SCOTUS laid out the primary obligation of government attorneys:

…they are representatives "not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in criminal prosecution is not that it shall win a case, but that justice shall be done.

Guidelines are then laid out for communications with the President on particular prosecutions where the national policy interests are implicated. Such communications shall be initiated by the DOJ only where appropriate, and only to the extent that prosecutorial discretion considerations allow.

There are expressly written guidelines on communications with members of the WH staff, monitoring by supervisors, and details which types of communications are or are not appropriate.

From what I can see from my read through, this not only goes further than the Bush guidelines in erecting safeguards and restrictions, but it also goes further than the Clinton memoranda did that Sen. Whitehouse referenced. What it does, essentially, is erect the proper "Chinese walls" between the political units in the WH and the non-political DOJ needs on discretionary cases, but doesn’t interfere with policy discussions that need to take place.

The questions that I had about national security contacts are also answered therein — consultation on particular policy is okayed, but discussions about pending cases is limited in the same way other criminal matters are limited to prevent political creep in the decision-making legal process. That is excellent news.

There are specific communication guidelines for the various offices where the WH and DOJ have common interest areas: the Solicitor General’s office, Presidential pardons, personnel matters, and non-case policy issues.

Further, and this is very important, requests for legal advice from the WH to OLC are expressly to be made to the AG or the Assistant AG for OLC (which, hopefully, will still be Dawn Johnsen). And it goes on to say that the head of OLC:

…shall report to the Attorney General and the Deputy Attorney General any communications that, in his or her view, constitute improper attempts to influence the Office of Legal Counsel’s legal judgment.

Seem like a Cheney/Addington preventative measure to anyone else? It’s a very good idea as a stopgap for improper arm-twisting.

There are specific guidelines about Congressional inquiry, communications between them, proper channels and the need for a prompt and appropriate response to oversight. The tone of this section is positive in terms of oversight and cooperation with Congress — which is also a nice change toward transparency and away from belligerence.

Finally, there is an end reference to how charging and other decisions are to be made:

Decisions to initiate investigations and enforcement actions are frequently discretionary. That discretion must be exercised to the extent humanly possible without regard to partisanship or the social, political or interest group position of either the individuals involved in the particular cases or those who may seek to intervene against them or on their behalf.

A lot of this memo is reminiscent of the strictures legal philosophy that Robert Jackson stressed to DOJ prosecutors all the way back in 1940 — a speech that has been the foundation of DOJ ideals for years. It’s is wonderful to see the echos of Robert Jackson in a lot of this.

Here’s hoping we see equal actions to match these words in the days ahead. Good for DOJ.

PS — Yes, I am still on vacation. No, I couldn’t help myself.

33 Responses to "BREAKING: New DOJ Communications Guidelines Emphasize DOJ Independence"
drouse | Monday June 8, 2009 08:15 am 1

The question that comes to my mind is, does this give Holder the green light to pursue investigations and prosucute cases that might be politicaly embarassing to his boss?

drouse | Monday June 8, 2009 08:18 am 2

BTW, I used to be known as HelplessDancer,due to a prolonged absense and registration problems, I had to make a fresh start.

oregondave | Monday June 8, 2009 08:32 am 3

Christy, Thanks for some good news this morning. The Obama administration is sure turning out to be a mixed bag, isn’t it?

Now — back to vacation for you.

TheraP | Monday June 8, 2009 08:58 am 4

Wonderful news. Kudos on snagging this! One more piece of hope!

Twain | Monday June 8, 2009 09:01 am 5

Sounds promising for the DOJ – hope it works.
Hope you and the Peanut are having a great time and eating lots of good stuff like chocolate.

foothillsmike | Monday June 8, 2009 09:02 am 6

What a great scoop Christy – congrats.

foothillsmike | Monday June 8, 2009 09:03 am 7
In response to foothillsmike @ 6

Now if we could just get Holder some help over at OLC

Millineryman | Monday June 8, 2009 09:03 am 8
In response to Twain @ 5

And ice cream for breakfast.

perris | Monday June 8, 2009 09:05 am 9

I’m pleased to see the DOJ explicitly making clear that is no longer going to be tolerated.

the doj HAD integrity and it was lost by the depravity of one administration

all it takes is appointing your own personal cronies, getting them approved by congress, it doesn’t matter what this administration does all that matters is that the next adminsitration can and will appoint whoever they want and almost always railroad their appointments through

the only way to get the doj independant is to take presidential power away from appointments, otherwise the doj will be as political as the president wants it to be

Phoenix Woman | Monday June 8, 2009 09:13 am 10

Thanks for this, Christy. Cleaning out the mess Bush left behind in DoJ seems to be a monumental task.

katymine | Monday June 8, 2009 09:14 am 11

It isn’t who got fired….. it is the ones who didn’t get fired and what they did….

Those that got fired talked ….. those that stayed….. there is some serious shit going on there….. CEO of COX, Seigleman, it goes on and on……

What is shocking is the AZ USA was fired because he would NOT peruse a death penalty case without a body and only witness statement of a drug dealer….

ghostof911 | Monday June 8, 2009 09:14 am 12
In response to perris @ 9

the only way to get the doj independant is to take presidential power away from appointments…

In a practical world, not sure how that could be implemented.

foothillsmike | Monday June 8, 2009 09:15 am 13
In response to Phoenix Woman @ 10

Cleaning out the mess that Bush left in the world is even more monumental.

BoxTurtle | Monday June 8, 2009 09:15 am 14
In response to drouse @ 1

He’s always had that green light…however, he know what his boss really wants and is smart enough not to do so.

Boxturtle (When Holder wrote that memo, I’m not sure he intended for it to apply to HIM)

katymine | Monday June 8, 2009 09:16 am 15

Why hasn’t they cleaned house?
Why do we still have these criminals still in office?
Just do not understand this?

foothillsmike | Monday June 8, 2009 09:24 am 16
In response to katymine @ 15

It is a time consuming process. Identifying those to be replaced, finding competent candidates, getting security clearances and congressional approval. When Bush came in many replacements were not in place after a year.

Petrocelli | Monday June 8, 2009 09:27 am 17
In response to foothillsmike @ 13

Hi Mike, I heard back from my Persian friend … she was at a Conf. and forgot to Tivo the Iranian debate.

katymine | Monday June 8, 2009 09:28 am 18

carry on everyone….. going to take my first nap of the day…… Thom Hartman is on fire…….. all economics…..

foothillsmike | Monday June 8, 2009 09:29 am 19
In response to Petrocelli @ 17

Sounds like things in Iran are pretty wild in the lead up to the elections.…..8iran.html

Hugh | Monday June 8, 2009 09:30 am 20

BTW SCOTUS ruled against Blankenship in that conflict of interest case in West Virginia.

Petrocelli | Monday June 8, 2009 09:30 am 21
In response to foothillsmike @ 19

I was going to post that link, but it was from the much maligned NYT …

TexBetsy | Monday June 8, 2009 09:30 am 22
In response to drouse @ 2

Welcome back Dancer!

Loo Hoo. | Monday June 8, 2009 09:31 am 23

This is great news, Christy. Thanks!

TexBetsy | Monday June 8, 2009 09:31 am 24

Christy, do we want to know what the policy was from Jan 20-May 8? Or better to just start with the current.

Petrocelli | Monday June 8, 2009 09:31 am 25
In response to Millineryman @ 8

So I’m not the only one …

Petrocelli | Monday June 8, 2009 09:32 am 26

Hey, are y’all Teachers retired or on vacation ?!! *g*

oldgold | Monday June 8, 2009 09:33 am 27

Read anyone of EW’s Sunday posts and the nightmare that can ensue from the wall being breached is set out in horrifying detail.

foothillsmike | Monday June 8, 2009 09:34 am 28
In response to Petrocelli @ 21

It still indicates that things are trending in a good direction and things have gone well in Lebanon on the heels of Obama’s speech in Cairo. (Hope it is not a spurious relationship)

TexBetsy | Monday June 8, 2009 09:34 am 29
In response to Petrocelli @ 26

Not only on vacation for the next month, but even sent the kid off with dad for 10 days!

Petrocelli | Monday June 8, 2009 09:39 am 30
In response to TexBetsy @ 29

wOOt !

Real vacation time for you, Betsy !

applepie | Monday June 8, 2009 09:45 am 31

Jane ‘Spy #34Z8′ Harman is voting for perpetual war.

She must be kicked out of office ASAP.

Twain | Monday June 8, 2009 09:51 am 32
In response to applepie @ 31

What is it with this woman? She’s all over the map and needs to go spend some quality time with her family – but they probably don’t want her at home being all dramatic.

foothillsmike | Monday June 8, 2009 09:52 am 33

Question: When congress goes on summer break next month will Obama be able to make interim appointments without going through the congressional approval process?

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