What will Obama's position be on the refusal of Bush aides to comply with congressional subpoenas?
Obama will have to do a careful balancing act. At a conference in Washington this week, former department criminal division chief Robert S. Litt asked that the new administration avoid fighting old battles that could be perceived as vindictive, such as seeking to prosecute government officials involved in decisions about interrogation and the gathering of domestic intelligence. Human rights groups have called for such investigations, as has House Judiciary Committee Chairman John Conyers Jr. (D-Mich.).
"It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries," Litt said. "It would really spend a lot of the bipartisan capital Obama managed to build up."
Litt, an informal Obama adviser and and former top Justice Department official under Bill Clinton, said at a Brookings Institution panel yesterday,
...Obama more likely will hammer out a compromise for Democrats to get at least some of the information they want. Litt said it would likely be done without forcing the subpoena issue that could set a long-lasting precedence for future White House dealings with Congress.
The Post identifies these individuals as transition team members on DOJ policy:
David Ogden, a chief of the department's civil division in the Clinton years, will lead the transition effort. Thomas J. Perrelli, who was a counselor to Attorney General Janet Reno and a classmate of Obama's at Harvard Law School, will serve as a deputy.
Within the Justice Department, career employee Lee Lofthus and political appointee Brian A. Benczkowski have been preparing binders for the transition team that contain sensitive information about ongoing investigations, positions the department has taken in forthcoming legal disputes and more run-of-the-mill data.
In addition to the subpoena issue, and far more important in my view, is this:
Moreover, by summer, key provisions of intelligence law are set to expire, including a controversial measure that gives the government more power to seize information from libraries under the USA Patriot Act. Civil libertarians say they will watch how Obama handles such issues and what he does even earlier, to review new guidelines for FBI agents conducting national security investigations that will take hold Dec. 1.
The Patriot Act and the FBI guidelines deserve much more attention than they have been getting.
Another critical issue: The National Law Journal reports today that the Bush DOJ is attempting to implement the Gonzales-initiated regulations fast-tracking the death penalty (by using an obscure provision in the Patriot Act to shorten the time periods for habeas appeals) before Obama takes office. The regulations generated a storm of criticism when submitted for public review in 2007. (The federal judiciary's concerns are here.) More here.
If you believe strongly that the new Obama Justice Department should focus more on prosecuting Bush Administration officials rather than negotiating a resolution to the subpoenas and moving on to issues like reversing bad policy decisions and orders of the Bush Administration, you should read Glenn Greenwald today. I'm not particularly interested in the subpoena issue or the firing of U.S. Attorneys. I am interested in keeping attention on policies affecting the rights of criminal defendants and ordinary Americans that need changing.
Finally, back to Sen. Leahy's point at the beginning: The Justice Department should be independent. The closer the Attorney General is to the President, the less likely that will be. For those reasons (among others) I hope Obama does not pick either Eric Holder, Janet Napolitano or any other senior campaign official or adviser for Attorney General. As Holder himself said in 2006:
"The attorney general is the one Cabinet member who's different from all the rest," said Eric Holder, who was a deputy attorney general during the Clinton administration. "The attorney general serves first the people, but also serves the president. There has to be a closeness at the same time there needs to be distance."
