Memo to Lynch: Reach Out to Your Opponents

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William J. Otis

William J. Otis

Eric Holder leaves office with a dismal approval rating— 26 percent according to one poll.

While Holder’s missteps in the Fast-and-Furious scandal and his confrontational style with Congress very likely damaged the standing of the Department of Justice, the public disapproval is not entirely his fault.

Prosecutors are not in business to be popular. But skepticism about Holder does mean that his successor, Attorney General Loretta Lynch, whose nomination was approved by the Senate yesterday, comes to the job with her work cut out for her.

Having been both a career attorney in the Justice Department and a political appointee, and at one point a presidential aide, I offer a number of suggestions in the form of a memo about how Lynch might approach her job.

They range from management style to areas of substantive law.

Adopt a Leadership style that earns broad respect. Former Attorney General Michael Mukasey (who served between 2007-2009) was widely and correctly praised for his fair-mindedness, sobriety and integrity. Embrace his model of leadership. It will restore the Justice Department’s reputation more than anything else you can do.

Focus on personal responsibility. Understand that the law is a limited instrument. A culture of personal responsibility fostered by the Department of Justice will do more for the public good than the actions of a gaggle of agencies in Washington. It will help if you say this loudly and often—which, given your remarkable life story, you are well-positioned to do.

Speak truth to power. Resist the strong and ever-present temptation to cave in to the powers around you, especially the White House and hectoring judges. They are not your constituents. The public is.

De-politicize the DOJ. Political bias combined with the power to prosecute is the petri dish of tyranny. One way to avoid politicization would be to give a stronger voice to accomplished career lawyers.

Reach out to those who opposed you. First, it’s the smart move. Republicans will control Congress for the remainder of the President’s term (and therefore, in all likelihood, yours). It’s to your advantage to show them that you have an open mind. More importantly, it’s the right thing to do. Political opinion has become historically polarized, and confidence in the federal government is abysmal. Trust in the executive branch specifically is a scant three percentage points higher than it was a few months before Nixon was forced to resign in disgrace. Finding common ground with (for example) Senate Judiciary Committee Chairman Chuck Grassley would be a hopeful start.

Address the heroin epidemic. Your predecessor understood it is alarming and deadly. There are thousands of overdose deaths every year, most of them among younger people with their whole lives in front of them. Heroin traffickers don’t need rehab; they need jail.

De-emphasize enforcement of non-mens rea statutes. Criminal law exists to punish behavior an ordinary person would understand to be wrong, not to enforce the regulatory state.

Respect the First Amendment. Use the platform your office gives you to encourage respect for the First Amendment and the values that underlie it. Free speech does not exist except when what gets spoken is “offensive” or “insensitive.” It exists especially when what gets spoken is offensive and insensitive.

Revisit the sentencing guidelines. Stop the slide back to the days of lawless and idiosyncratic sentencing. Ten years ago, the Supreme Court rendered the federal sentencing guidelines “advisory only,” but invited Congress to re-enact mandatory guidelines with improved safeguards for defendants. Over the last ten years, sentencing has become more scattershot: sentences are now given more often outside the guidelines than within. You should take the lead by backing reform legislation to restore more nearly equal treatment.

Reverse Holder’s sentencing ‘reforms.’ Eric Holder’s criminal justice “reform” program was rooted in the idea that we have too many criminals sentenced to prison for too long. The program has three premises, all of which are wrong.

The first is that the measure of the system’s health is the incarceration rate. That’s not so; the measure of success is the crime rate, which began a sharp and steady drop during the Clinton and Bush administrations. Both supported stern sentencing statutes.

The second is that incarceration does little or nothing to reduce crime. Studies show, however, that it accounts for at least 25 percent of the enormous crime decrease since 1990. There are more than four million fewer serious crimes per year now than there were a generation ago. This achievement needs to be preserved, not jeopardized by returning to the failed policies of the 1960s and 1970s.

Third, going softer on sentencing simply won’t work. As the Department of Justice (DOJ) found after an extensive study finished last year, the recidivism rate is in excess of 75 percent. With that sky-high figure, lower sentences and early release are certain to produce only one thing: More crime faster.

Don’t file Supreme Court briefs that lose 9-0. Holder had the worst record of losing unanimous Supreme Court decisions in decades, possibly ever. When you’re losing Elena Kagan and Sam Alito, and Antonin Scalia and Sonia Sotomayor, all at the same time, your position is not merely wrong. It’s frivolous, or close to it. There is no excuse for the DOJ to have such a record. It’s time to take a close look at the Solicitor General’s Office.

Understand the need for respect, discipline and equality in dealing with incendiary racial issues. Public confidence in the DOJ cannot survive if it is seen as catering to a culture of grievance, entitlement and racial preference. As the New York Times has reported, “Five decades past the era of legal segregation, a chasm remains between black and white Americans – and in some important respects it’s as wide as ever.”

The current fashion in some quarters of demonizing law enforcement agents and prosecutors— and viewing the police as the enemy— will only deepen that divide. Minorities are disproportionately the victims of crime, especially violent crime. They are thus the principal beneficiaries, not the victims, of police work.

Penalize bigotry where it’s actually shown. In the 21st Century, it is past time for the law to have wiped out racial discrimination in public life. But the Holder Justice Department aggressively used “disparate impact” theory to impose equal outcomes even in the absence of any evidence of intentional discrimination. As the Wall Street Journal has pointed out, Holder used disparate impact theory to essentially coerce settlements from banks and other businesses based on statistics, but without evidence of discriminatory intent.

This is wrong. A free county with limited government, and our law, cannot and do not demand equal outcomes in the name of civil rights.

Enforce the death penalty. There are some murders so ghastly and inhuman that only the death penalty makes the punishment fit the crime. Federal jurisdiction will not very often include capital cases, but when it does, you should not flinch from it. The death penalty has enjoyed 60 percent or more public support in each of the last 40 years, and was not only supported but directly used by Presidents Washington, Lincoln and Franklin Roosevelt.

To his credit, Eric Holder allowed a federal jury to consider the death penalty for unrepentant child killer and terrorist murderer Dzhokhar Tsarnaev. And the country’s first woman Attorney General, Janet Reno, properly sought and obtained the death penalty for mass- murderer Timothy McVeigh.

Don’t usurp congressional powers. The Constitution requires the President to “take care that the laws be faithfully executed.” The precise meaning of the Take Care Clause is disputed, but one thing it cannot mean is that the President— and by extension, his chief law enforcement officer—is free simply to ignore whole swaths of the law. Prosecutors must and do have wide discretion about what charges to bring. But repeal-by-non-enforcement amounts to usurpation of powers reserved to Congress.

This means at least two things going forward.

One is that immigration enforcement cannot be effectively suspended. If immigration law is all wrong, it’s up to Congress to fix it. It is not up to the President to disregard it, and doing so—in addition to its immediate effects on border states— will have a wider and more pernicious effect: If the President can disregard the law, why should the ordinary citizen obey it?

In addition, the DOJ should scale back its full-steam-ahead clemency program. It’s true that clemency has been used less in recent years than the historical norm, probably in part because it got a bad name with the Clinton Midnight Pardons, granted to (among others) a fugitive Democratic billionaire and the President’s half-brother.

Executive clemency should be reserved for exceptional individual cases. There, it should be neither withheld because of fear of political repercussions nor granted for hope of political reward. In no event should it be used effectively to ify an entire class of sentences— drug sentences or any others—lawfully imposed under statutory mandates.

William G. Otis is Adjunct Professor of Law at Georgetown University Law Center. He spent much of his career as head of the Appellate Division for the US Attorney’s Office for the Eastern District of Virginia. He has also been Counselor to the Administrator at the DEA (2003-2007) and Special Counsel for President George H. W. Bush (1992). He welcomes your comments.

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