Rove, the DOJ, and the Politics of Law

The cacophony accompanying health care reform has drowned out most other news these days, but this one ought not to slip through the cracks: internal documents released to federal prosecutors have shed light on Karl Rove's role in the firing of U.S. attorneys by George W. Bush. For those who need a refresher, the scandal stems from the firing of eight U.S. attorneys. Democrats complained that the attorneys were specifically targeted for political reasons (namely, for not using their position as U.S. attorneys to investigate voter fraud in districts where Democrats held seats). Conservatives have responded that such rotation-in-office is a fundamental part of democracy, practiced by both political parties.

They are right, of course, but this scandal has deeper, more sinister undertones. We are not talking about rotation in office so much as a perversion of the role of the Justice Department, from that of an impartial legal authority charged with carrying out and executing laws (passed by Congress, one must note) to a surgical political tool, in the service of a particular party.

Rove has downplayed his role. Nonetheless, the e-mails he sent in the thick of the battle seem to implicate him in manipulating the justice system. This, of course, fits his profile. Rove has self-consciously modeled himself after Mark Hanna, the Republican strategist who midwifed the modern political campaign in 1896 and engineered a Republican majority that lasted the better part of a third of a century. It should surprise no one, not even Rove supporters, that he was sedulous in his efforts to use all the powers at his disposal to achieve a like result. (His failure will be a matter for scholarly reflection for decades to come.)

It is unclear, however, precisely what will come of all this. It is doubtful that Rove will be prosecuted. If anything, this is evidence of executive branch mismanagement, and that also fits the M.O. of our last president, who simply did not have the wherewithal to know what was going on where. But we are hardly going to prosecute Bush for his incompetence. Will we prosecute Rove for his malevolence?

There are convincing arguments against such prosecutions, the main one being that we do not want to engender a culture of using official power to punish the last party in office. While serious offenses (woeful disregard of laws prohibiting torture, e.g.) should not be overlooked, the manipulation of executive departments for political gain may well fall into a more minor category. (This recalls, at least in part, the question visited during Clinton's impeachment: what precisely constitutes a "high crime or misdemeanor"?)

I advance the following as an observation only, but perhaps it is time for Congress to assert a more predominant role as watchdog against executive excess. This must occur while the president is in office, not after. It might also require some institutional reform, in terms of how people are removed from office and for what reason. And the weapon of impeachment, seriously unleashed only three times in our nation's history, needs a more serious and solid institutional and intellectual foundation. It is worth note that 2 of the 3 impeachment rumblings, against Andrew Johnson and Bill Clinton, were unapologetically partisan in nature. What will it take to establish some guidelines for serious congressional checks on an executive that has become, for all intents and purposes, an elective kingship?