Restoring Justice - If Bush wins, a great and urgent task - Justice Department

National Review, June 5, 2000 by Byron York

IN the span of a few hours on January 8, 1982, the Reagan Justice Department, in office less than a year, wrapped up three troublesome cases it had inherited from previous administrations. First, the department withdrew a mammoth antitrust suit against IBM. William Baxter, the new head of the antitrust division, explained that he had little choice in the matter; after 13 years of trying, the Justice Department simply didn't have much of a case. Next, Baxter announced the settlement of an equally mammoth antitrust suit against AT&T-in a historic deal that led to the breakup of the phone company. And finally, the department reversed the government's position in the Bob Jones University case, in which the school had challenged the Internal Revenue Service's policy of denying tax-exempt status to institutions that discriminate against blacks. Saying the IRS had made up the policy on its own, with no authority from Congress, the Reaganites sided with Bob Jones.

Bang, bang, bang. It was a decisive example of a new administration clearing the decks, getting rid of high-profile cases that had languished in the Nixon, Ford, and Carter administrations and freeing the Justice Department to work on the new president's agenda.

Next January, if George W. Bush wins the White House, Republicans will, for the first time in 20 years, take over the department following a Democratic administration. There will again be plenty to clear out-the Microsoft case will likely linger into the next year, to name one big example-but Republicans will face problems far greater than any pending court case. The Clinton Justice Department, in the view of many in the GOP as well as some independents and Democrats, has been deeply compromised by a series of fundamentally political initiatives-lawsuits against tobacco companies, threats of suits against gun manufacturers- and by its own actions in investigations involving the president and other top administration officials. Unlike the Carter/Reagan transition, which veterans of both sides remember as a smooth hand-off between lawyers who had a mutual respect, the greatest challenge facing Repub licans in a Clinton/Bush transition would be the restoration of the department's integrity. "There's been a leadership vacuum, and the department has been politicized," says former Bush administration attorney general William Barr. "The primary task will be to rebuild professionalism and morale-the department has to be re- professionalized."

SMOKED OUT

One of the earliest and biggest decisions a new attorney general will have to make is what to do with United States v. Philip Morris, R. J. Reynolds, Brown & Williamson, Lorillard, Liggett, and American Tobacco. Announced by Bill Clinton in his January 1999 State of the Union address, and filed by the Justice Department last September, the lawsuit accuses cigarette makers of a 45-year conspiracy to deceive the government and the public about the health risks of smoking. It asks that the tobacco companies be forced to turn over all profits earned as a result of the conspiracy-in effect, everything they have made since the mid 1950s.

The problem with the suit, according to many experts, is that it has no firm basis in law. The Justice Department argues that a statute providing for the government to be reimbursed for the treatment of injured soldiers, a law covering Medicare insurance, and RICO, the federal racketeering statute, together empower the government to sue Big Tobacco. "I was surprised that the federal government was even bringing a case, unless it was just to put the companies out of business," says Carter administration attorney general Griffin Bell, who in private practice has represented Brown & Williamson. Adds Michael Uhlmann, a veteran of the Ford Justice Department and Reagan White House, "It's so novel and so potentially mischievous that it would be irresponsible for the new administration not to take a very, very hard look at it."

And look at it they would. While George W. Bush has not said what he would do with the case, he has stated on many occasions that he believes in "legislation instead of lawsuits." If he is elected, and if that principle guides his decisions in office, it is possible that a Republican Justice Depart ment will withdraw the suit, bringing the litigation-and a major part of Bill Clinton's war on Big To bacco-to an abrupt end.

The department might well make a similar decision in the case of gun manufacturers. Housing secretary Andrew Cuomo has threatened to sue gun makers unless the companies agree to a number of concessions that the administration calls "gun safety" measures. Although Cuomo is leading the charge, if a suit were ever brought, it would be the Justice Department's job to do the suing. A new attorney general might conclude that, as in the case of tobacco, the gun suit has no legal grounding- that any action on the issue should come from Congress, not from the courts-and dispense with Cuomo's campaign.

Beyond that, a new Justice Department would look at dozens of other politically tinged Clinton initiatives. Justice's efforts to take over police departments in New York and Los Angeles would certainly face scrutiny. So would dozens of decisions in the field of civil rights and affirmative action, where the administration has supported racial preferences in education and numerical remedies in employment cases, among other things. The same would be true of the department's defense of racially gerrymandered congressional districts.