Restoring the Rule of Law through Department of Justice Reform

In Overcoming Trumpery: How to Restore Ethics, the Rule of Law, and Democracy (Norman Eisen ed., Brookings 2022)

U of Penn Law School, Public Law Research Paper No. 22-21

58 Pages Posted: 23 Feb 2022 Last revised: 16 Mar 2022

See all articles by Claire O. Finkelstein

Claire O. Finkelstein

University of Pennsylvania Carey Law School

Richard W. Painter

University of Minnesota Law School

Date Written: February 16, 2022

Abstract

As the nation’s principal law enforcement agency, the Department of Justice (DOJ) plays a unique role in protecting U.S. democracy. Even though the attorney general is appointed by the president and serves at the president’s pleasure, a recognition of the comparable independence of the DOJ from the political priorities of the rest of the executive branch has been critical for maintaining the department’s integrity and credibility over the course of its roughly 150-year history. The DOJ powerfully reinforces both rule of law norms and democratic governance when it faithfully conforms to law and ethics. But the flip side is also true: The DOJ is particularly well situated to corrupt the rule of law when it bends legal principles to suit political aims.

This chapter elaborates on a report the authors produced as co-chairs of a bipartisan working group organized in 2020 by the Center for Ethics and the Rule of Law (CERL) at the University of Pennsylvania in conjunction with Citizens for Responsibility and Ethics in Washington (CREW). Issued in October of 2020, the Report examines the tenure of former Attorney General William Barr and the functioning of the DOJ under his leadership. A core theme that arose across the many different areas of DOJ activity in that period was the degree to which the Department had become politicized and the profound effect that this had on the rule of law for the country as a whole.

As this Chapter makes clear, politicization within the DOJ is not new. Over the course of the past twenty years, one can observe a wide range of DOJ functions where the effects of politicization are apparent. These include the prosecutorial functions of United States attorneys, legal advice to the Executive Branch from the Office of Legal Counsel, the supervisory role of the Attorney General, Congressional oversight of DOJ and compliance with Congressional subpoenas, appointment of independent special counsels for politically sensitive investigations and DOJ investigations of the intelligence community. This chapter includes specific suggestions for reform of DOJ to restore the law enforcement mission that is so critical to upholding the rule of law.

Keywords: Department of Justice; Rule of Law; Bell-Levi Reforms; Office of Legal Counsel; Obstruction of Justice

JEL Classification: K42

Suggested Citation

Finkelstein, Claire and Painter, Richard W., Restoring the Rule of Law through Department of Justice Reform (February 16, 2022). In Overcoming Trumpery: How to Restore Ethics, the Rule of Law, and Democracy (Norman Eisen ed., Brookings 2022), U of Penn Law School, Public Law Research Paper No. 22-21, Available at SSRN: https://ssrn.com/abstract=4036891 or http://dx.doi.org/10.2139/ssrn.4036891

Claire Finkelstein (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-5798 (Phone)
215-573-2025 (Fax)

Richard W. Painter

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-626-9707 (Phone)

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