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Since its inception, NYCLA has been at the forefront of most legal debates in the country. We have provided legal education for more than 40 years.
The recent firings, transfers, and demotions of career Justice Department attorneys and FBI agents based on their involvement in the investigations of President Trump and the January 6, 2021, attack on the Capitol have us very concerned.
It is one thing for a new administration to replace policymakers and political appointees, which is to be expected. It is quite another to target career public servants who were simply doing their jobs of upholding the law and the Constitution. And these actions are apparently being taken without regard to whether the career public servants had a choice in the assignments they undertook. These aggressive employment actions might well violate federal civil service laws; that question will ultimately be resolved by the courts.
Even more disturbing is the speed with which the new administration is moving to silence, sideline, and effectively “cancel” anyone in the federal government who has deep institutional knowledge of investigations that have the potential either to implicate or to embarrass the President. When combined with the pardons of nearly all the January 6 defendants, these actions evince a concerted effort to remove embarrassing and possibly inculpatory evidence from the public record.
We decry these actions as contrary to the notion that the Justice Department stands for fairness, impartiality, and the rule of law. But we should also recognize that, as an executive branch agency, the Department is not by law independent of the President, even though, since the Watergate scandal of the 1970s, the Justice Department has abided by a tradition of independence. For a tradition to endure, each new generation of leaders must embrace it, and as recent events demonstrate, that is far from guaranteed.
Perhaps public discussion should center not just on the erosion of the Justice Department’s independence but also on potential solutions to that problem. The federal government tried after Watergate to deal with the need for prosecutorial independence by adopting a combination of statutes, rules, regulations, and policies, which generated controversy but largely succeeded in insulating prosecutorial decisions from the White House. Court decisions have weakened those rules, and now the remaining guardrails appear to be breaking down. In the current landscape, there are no easy solutions when an administration is dead set on politicizing the Justice Department. Thus, it is worth studying possible reforms, even those that might be viewed as politically impractical. One idea worthy of study might be a constitutional amendment establishing an independent prosecutorial authority, with jurisdiction to investigate official misconduct, which does not answer to the Chief Executive. Whatever potential solutions are discussed or adopted, the ultimate goal should be to promote the integrity of our public institutions and to ensure the fair administration of justice.
About the New York County Lawyers Association
The New York County Lawyers Association (www.nycla.org) was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion, or gender. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy.
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