Last Saturday, Harry Siegel of the New York Daily News reported that shortly after President Trump signed his immigration executive order, Stephen Miller called the U.S. Attorney for the Eastern District of New York, Robert Capers, to instruct him on how to defend the order in court.
The alleged contact prompted Matthew Miller, former Department of Justice spokesman under Attorney General Eric Holder, to ask on Twitter:
This sort of contact is prohibited under a memo from Holder that is still in force. Is Sessions going to allow this kind of WH meddling? https://t.co/BQy5M98EBN
— Matthew Miller (@matthewamiller) February 19, 2017
The issue of Justice Department independence is one that (Matthew) Miller also raised last month prior to Sessions’s confirmation. “This is the biggest question Jeff Sessions has to answer,” Miller told Politico, in a story detailing longstanding internal policies designed to shield the Department from political pressures. “Attorneys general have always established it’s not appropriate for the White House to influence prosecutorial or investigative decisions. But there’s no law or regulation. If they want to change it, they can change it.”
So is Miller right? Given the alleged conduct of Trump’s political aide, must Sessions do something about the guidelines presently in force?
Not necessarily. Miller may be jumping the gun a bit, given the language of the memo establishing the Justice Department policy in question and given how little we know about the alleged Miller-Capers communication.
Let’s back up and acknowledge the historical context. After Watergate, Jimmy Carter campaigned on the promise to establish "as far as constitutionally possible, an independent Department of Justice,” and in 1978 his attorney general, Griffin Bell, sought to make good on that pledge by instituting procedures to insulate the Justice Department from political pressures. But what became the customary rules governing interaction between the White House and Justice were relaxed most recently under the George W. Bush administration, in a set of episodes the administration came to regret. As recounted by Politico in January, Bush's first attorney general, John Ashcroft, expanded the number of White House officials permitted to contact the Justice Department on non-national security members from four to 417; his second attorney general, Alberto Gonzalez, further increased the number to 895 (according to findings by Senate Judiciary Committee member Sheldon Whitehouse, a former U.S. attorney). These changes ended in scandal: among other things, under Gonzalez, seven U.S. attorney generals were abruptly fired in 2006 for political reasons that, according to a subsequent report by the Justice Department Inspector General, "raised doubts about the integrity of Department prosecution decisions." Michael Mukasey reinstituted more traditional guidelines in 2007, and Eric Holder replaced them with his own substantively similar variant in 2009.
As (Matthew) Miller predicted, particularly given the loose rein apparently enjoyed by political aides in the current White House, the question of appropriate contact between the White House and Justice Department is likely to become a major one. But the memo is loosely enough worded that it is highly doubtful that episodes like (Stephen) Miller’s alleged interference would prompt Sessions to take the conspicuous, politically fraught step of simply revoking the Department policy—that is, without replacing it with something similar, as Holder and past attorney generals have done.
The 2009 memorandum Miller refers to was issued by then-Attorney General Holder after consultation with White House counsel and sets forth guidelines restricting communications between the Justice Department and the White House to ensure that the Department’s legal judgments are “impartial and insulated from political influence” and that its “investigatory and prosecutorial powers be exercised free from partisan consideration.”
The heart of the memo is a set of prescriptions limiting the Justice Department’s communications with the White House and Congress regarding pending or potential criminal or civil investigations or cases. The Department will advise the President on such investigations or cases “when—but only when—it is important for the performance of the President's duties and appropriate from a law enforcement perspective.” The memo also attempts to limit such communications on a need-to-know basis: initial communications must involve only the Attorney General or the Deputy Attorney General and the President or the Vice President, expanding as needed to the Associate Attorney General and designated subordinates (note the potential implications of this in a White House in which Stephen Miller is a trusted senior adviser). For purposes of facilitating congressional oversight, the memo also states, using language that became highly relevant last November, that “the Department will respond as appropriate to inquiries from Congressional Committees consistent with policies, laws, regulations, or professional ethical obligations that may require confidentiality and consistent with the need to avoid publicity that may undermine a particular investigation or litigation.”
The rest of the memo very briefly addresses communications arising out of a range of special circumstances: national security matters, White House requests for legal advice, communications involving the Solicitor General's office, presidential pardon matters, personnel decisions concerning civil service positions, and finally communications not relating to pending investigations. On national security, the memo explains that the general limitations regarding pending or potential investigations or cases do not apply to “communications from (or to) the Deputy Counsel to the President for National Security Affairs, the staff of the National Security Council and the staff of the Homeland Security Council that relate to a national security matter,” except when it comes to “pending adversary cases in litigation that may have national security implications.”
Note two things about the memo.
First, that last bucket, “Communications Not Relating to Pending Investigations or Criminal or Civil Cases,” functions as a pretty big carve-out. It makes clear that the memo doesn’t purport to restrict “communications between the Department and the White House or Congress that are limited to policy, legislation, budgeting, political appointments, public affairs, intergovernmental relations, or administrative matters that do not relate to a particular contemplated or pending investigation or case.” If Miller was calling EDNY U.S. Attorney Capers about the White House’s interpretation of the policy in place as a result of Trump’s executive order, that would probably fall into this carve-out. If he really was “dictat[ing]” what the attorneys in the office should say to defend the order in an upcoming hearing, then it was inappropriate, as a communication that relates to a pending civil case.
Second, and perhaps more importantly, the memo ends with this:
As Attorney General Benjamin Civiletti noted in issuing a similar memorandum during the Carter Administration, these guidelines and procedures are not intended to wall off the Department from legitimate communication. We welcome criticism and advice. What these procedures are intended to do is route communications to the proper officials so they can be adequately reviewed and considered, free from either the reality or the appearance of improper influence.
If it’s true that Miller reached out to Capers not for purposes of a general policy conversation but to instruct him on how to proceed with a case, that’s pretty much the definition of not legitimate communication. But it’s also an example of White House-side shenanigans that the memo seems to recognize the Justice Department can’t entirely prevent. What the Justice Department can do is make it crystal clear, for White House political aides and others, that this sort of communication will in any event be routed from their inappropriate targets to “the proper officials” to deal with—and, if that communication is inappropriate in substance, dispense with.
All of this suggests it may not be not enough for Attorney General Sessions to keep the 2009 policy guidance in place, or to issue his own—just as it wasn’t enough for him to assert at his confirmation hearings, as any Justice Department nominee must, that he intends to head an independent department capable of standing up to the President. If the White House persists in interfering with Justice Department strategy in general or investigations in particular, to maintain outside confidence in the Justice Department’s impartiality, it may be on Sessions to publicly—and as needed, repeatedly—reaffirm his Department’s continuing commitment to remaining “impartial and insulated from political influence.” Post-confirmation, we haven’t yet seen that.