DOJ’s Bleak Future and Modest Paths for Reform
Both parties have a stake in reform, even if only so much can be done.
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The firing of Pam Bondi suggests to some commentators that no attorney general serving President Trump can meet his expectations for the successful pursuit of his enemies or his protection from dangers like the Epstein scandal. The job in this administration is “impossible:” Bondi’s successor is also doomed to failure.
This is a hasty conclusion, and it is unfounded.
Trump has made remarkable progress—even if, by his lights, he has not achieved complete success—in turning the Department of Justice into a reliable instrument of his political and personal will. He may not have gotten all the results he has wanted, but he has now installed new leadership and still has two-and-a-half years left to attempt to achieve them.
The strides he has made so far are evident in a department today that is very different from the one he left in 2021. During the Bondi era, under pressure from Trump, its leadership has pressed a wide-ranging assault against past and present political opponents, including members of Congress. Although these prosecutions have so far failed, they nonetheless have required those targeted to hire lawyers and defend themselves. The damage is serious; the threat persists. The department has purged or driven out thousands of DOJ lawyers deemed unable to meet the loyalty test or who have been unwilling to do so. The former Deputy and now Acting Attorney General Todd Blanche has described the department as locked in a “war” with “rogue activist judges” who rule against it.
Blanche assumes his new post as a pivotal former member of the president’s personal legal defense team who has embraced the president’s program for this department. Whether or not he stays on, it is not clear why it is assumed that Bondi’s departure shows the limits of what Trump can still hope to do with the Department of Justice. He fired Bondi because he did not believe she did the job as he wanted it done. It is reasonable to conclude that he expects more from Blanche.
A wholly new model for the department has been established. It might be hoped that a future change in administration will restore the departmental norms that, to some meaningful degree, protected against political abuse of federal law enforcement. But there is no guarantee of this: As the saying goes, hope is not a strategy.
The Reform Challenge
A pressing question is whether there is some reform achievable with bipartisan support that could help protect against the “new normal” of a department that answers reliably to a president’s personal and political demands. There may be—if one accepts that, even if it can accomplish only so much, modest reform is better than none at all.
In 1975, in the aftermath of Watergate, the American Bar Association established a special committee to examine the challenge of insulating law enforcement from political pressures. It concurred in what was then the general judgment that an independent department was not the answer. Even legal commentators such as the authors of a New York City Bar study—who concluded that Congress could constitutionally remove some department functions from presidential control—did not believe that, as a policy matter, any such carve-out should include decisions to initiate investigations and prosecution. But the ABA committee remained concerned about weaponization: the use of the Department of Justice and the FBI to “‘get back at’ political enemies.” It made a series of recommendations for the role of Congress that could fruitfully guide reform thinking in our own time.
But a first question is why any such reforms might, if only eventually, sell on a bipartisan basis. The two political parties each have an interest in defending themselves against the weaponized department that the other will periodically control. In the last 18 months, Congress experienced the aggressive turn in these wars in which the DOJ has launched weaponized investigations at sitting members in both the House and the Senate. The next administration, or one after it, may pledge that it will return to an earlier era where abuses were called out as a deviation from the norm. There is no certainty that this will be the case—or for either party to expect that only the other will suffer the consequences.
Statutory Qualifications for the Senior DOJ Nominations
Among the special committee recommendations was the imposition by statute of limited but significant restrictions on the categories of candidates for attorney general and deputy attorney general who are eligible for service. Excluded would be former key officials of the president’s presidential campaign and national party. Jack and I have recommended consideration of this reform. We have argued for a measure that would “bar the president from appointing to senior Justice Department positions individuals who within two years of appointment” served in “positions of trust or responsibility in the president’s personal campaign organization; in a national, state, or local political party; or in other political organizations that supported the president for election.” We acknowledged that any such prohibition “would not prevent a president from nominating someone who was fiercely partisan and loyal,” but it “would exclude someone who might otherwise be considered and could favorably shape the norm surrounding appropriate nominees.”
Now, in light of recent experience, that category could be broadened to rule out as well any attorney who had rendered personal legal services to the president within two years of appointment. The deeply personal stamp the president has put on the department through the appointment of his personal criminal defense lawyers to the most senior positions is without precedent. Congress chose to look the other way and confirmed these nominations. The year and a half that followed has shown that these selections were not merely a comfortable choice for the president. They were deliberate and decisive steps toward building and running a department that would act on his program of full presidential direction and control. While Bondi was the nominee with the least of the extensive ties to the president developed in a prior personal representation, he may still have felt she owed him a better performance on that program than she delivered.
In our discussion of disqualifications based on campaign and party service, Jack and I noted that while the constitutionality of these criteria was not settled, qualification requirements for executive branch appointments are commonplace, and we cited the one in effect for the secretary of defense. The secretary must be “appointed from civilian life” and cannot be appointed within seven years of service in the armed forces. Under Office of Legal Counsel precedent, a qualification requirement for executive branch service would not pose a constitutional problem unless it would “rul[e] out a large portion of those . . . persons best qualified by experience and knowledge to fill a particular office.” It is difficult to see how the small number of lawyers who would fall within these political and personal disqualification criteria would severely diminish the pool of lawyers available to capably serve as attorney general.
How much would it matter? Only so much, but it is one way that Congress can lay down a marker on the qualities and experience that make for fitness in an attorney general. A president may deny that a law can so constrain his choice of a candidate, but Congress is not required to confirm the candidate he or she nominates in the teeth of such an enactment. In fact, having passed this statute, senators may be binding themselves more, as a political matter, to denying confirmation to those nominees put forward in disregard of the legal prohibition.
Senate Rules
Another special committee recommendation involved Congress in a different way: that the “confirmation process for all Presidential appointees to the Department should become a vigorous component of its oversight function.” The committee recommended that the Senate should give the “same emphasis” to the confirmation process involving senior DOJ officials as it does to nominations to the Supreme Court. This was an exhortation without a specific proposal for how this “special emphasis” would be achieved.
But one possibility would be the Senate’s adoption of rules to specifically govern nominations to senior positions in the Department of Justice: at least those of the attorney general, the deputy and associate attorneys general, and perhaps, too, the assistant attorney general in charge of the criminal division.
One potential rule could impose a modified form of a supermajority requirement for the Committee on the Judiciary to move a nomination to the floor. The requirement would apply to the first such vote, and if the nomination lacked bipartisan support, it would fail and could not be retaken for a specified period. The additional time in Committee would allow proponents and opponents of the nomination to continue to make their cases, seek additional information, or negotiate. The rules could provide for two such votes subject to this requirement. In the end, if the nomination could not generate bipartisan support, it would on a third vote have to proceed to the floor. The purpose behind the rules would be to reward bipartisan support with faster approval and to highlight—and potentially resolve—concerns about particular nominees. It would be one way of ensuring “special emphasis” on the DOJ nominations and the norm of impartiality that requires congressional support from every direction possible.
A rule change of this kind might not appeal to either party: Each might fear that the other would simply block nominations for as long as it could without regard to the intention behind the rule. But each might also consider what the future may hold if steps are not taken to arrest the steep decline of the DOJ into the weaponizing model now under construction.
Conclusion
The scope of effective reform to address the advent of a politicized, weaponizing Department of Justice may be limited, but those suggested here would signify a congressional commitment to get off the sidelines and breathe as much life as it can into the core norms now withering away. Now that members of Congress have themselves become targets, they can appreciate in the most personal as well as institutional terms how far the DOJ has fallen and how dangerous it has become.