Justice is busy doing right

'Congress has been notably silent over the president’s ability to exert control over the Attorney General, leading to much confusion among scholars, judges, and even the officeholders'

Monday’s Newsrime

The FBI’s Kash Patel is busy doing right

blanking Epstein files that never see the light

Discovering crimes by Democrats never gets old

while spending taxpayer dollars watching the Gold

From The New York Times:

The F.B.I. director, Kash Patel, criticized for blurring the lines between personal recreation and professional responsibility, spent Sunday celebrating the American hockey team’s Olympic victory in Milan as the bureau grappled with multiple, fast-developing crises at home

The lede says it all.

There are, of course, more questions from a policy perspective. Interesting op-ed from a former federal prosector Daniel Richman about the release of the Epstein files. He sees this as a breakdown in trust between the public and the Department of Justice.

From his op-ed:

But we should recognize the release of millions of pages of the Epstein files as both a sign of institutional failure and a cause for concern. If our justice system were working properly, the public would never have such access.

In the not-too-distant past, most people probably would have at least grudgingly accepted a regime in which prosecutors and law-enforcement agents sorted through materials from a sprawling investigation and made public only those portions needed to properly handle a case. The additional information that might interest us, and perhaps even help improve society, would remain secret. Federal prosecutors could generally be trusted to focus on their narrow criminal enforcement mission and to not abuse the tools given them for that limited purpose. No longer.

This gets back to the “what’s next?” question: After Trump, how does the country rebuild its criminal justice system? Abolish ICE? At this point, absolutely. But that’s just one element. How do we fix a system that’s untrustworthy?

One answer might be rethinking which parts of the government should be ripped out from the portfolio of elected politicians. The current battle over the Federal Reserve Bank is an example of that. But in the post- Trump world, there should be more independence for law enforcement agencies. The FBI was supposed to be in that model with a director’s ten-year term. But Robert S. Mueller, III is the last director to serve a full term (actually serving 12 years).

And the Department of Justice is supposed to operate independently already, following the law, not politics. The first woman, and one of the longest serving attorney generals, Janet Reno, championed that kind of independence. She saw the role as the people’s lawyer, not the president’s counsel.

In 2023, Andrew Nisco wrote a paper for the Georgetown Journal on Legal Ethics making the case for proscribed independence. Turns out the Department of Justice is not even in the U.S. Constitution and wasn’t created until 1870.

From the paper:

When compared to the other agencies created in the First Congress–the Department of Foreign Affairs, the Department of War, and the Department of Treasury–the Office of the Attorney General received far less consideration in clearly outlining the role and the powers of the Attorney General. Since 1789, Congress has been notably silent over the president’s ability to exert control over the Attorney General, leading to much confusion among scholars, judges, and even the officeholders, about how responsive the AG is to the political whims of the president.

Congress tried to fix that problem (you know, Richard Nixon and Watergate) by establishing a process for independent special counsels.

The Ethics in Government Act allowed for the appointment of an independent special prosecutor, a position deemed so essential for democratic governance that the Supreme Court said the president need not exercise control over the role.74 However, in 1999, the Act was allowed to sunset, as Congress did not renew the statute. Attorney General Janet Reno, under President Clinton, did promulgate rules within the Department of Justice that provided for the appointment of special counsel. The key difference between the Ethics in Government Act and the internal rules is that Congress and the Judiciary have no power in the rule’s current form; all power resides within the Attorney General.

One of the key things about the Trump era is that the stench of excess opens a window to reform. And what that looks like needs to be structural, not based on the good intentions of any elected leader.

And for Kash Patel? He wrote on “X” social media:

“For the very concerned media – yes, I love America and was extremely humbled when my friends, the newly minted Gold Medal winners on Team USA, invited me into the locker room to celebrate this historic moment with the boys- Greatest country on earth and greatest sport on earth.”

Justice at Justice.