John G. Searle  Scholar Michael S. Greve

The incoming attorney general's most important task is to restore a sense of constitutionalism. Specifically, he must bring a sense of realism and proportion to an absurd debate over the Justice Department's institutional role. Attorney General Alberto Gonzales is widely blamed for having "politicized" the Justice Department. His real offense is the provision of endless ammunition to constituencies who hope to subordinate the department to interestgroup wrangling.

The Justice Department operates in an ambivalent role. On one hand, it is supposed to enforce the law, and its awesome power to wreck human lives should be exercised with restraint and impartiality. On the other hand, the department embodies the exercise of executive power, which we want to be political. Why else would we elect a president? Striking the balance is tricky, but there are a few rules of the road. Translating the president's anti-terror policies into law is "political," but OK. (Who else is going to do it?) Crushing political opponents under the federal government's boot heels is not OK.

The Gonzales Justice Department could never tell the difference. Post-Enron, for example, the department translated a sensible policy ("let's not be, or be perceived as, soft on corporate fraud") into outright extortion, codified in the so-called Thompson Memorandum: You, dear company, will abrogate your contractual obligations to pay your employees' legal expenses. Or else, you are dead meat. An administration that so manhandles its friends should not be surprised when its enemies turn paranoid.

The blurring of legitimate policy considerations and rank politics has opened the door for demagogic claims that no politics should ever enter the Justice Department. The notion, however, is lunatic on its face. Power abhors a vacuum. A Justice Department beyond presidential direction will be anything but an impartial guardian of "the law"; it will be a congressional play pen. Executive cronyism is a disease, but congressional patronage is hardly a cure.

In fairness, the Bush administration did not invent the department's "whatever we can get away with" posture. It inherited it from the Clinton administration. The difference is not deviousness but clumsiness. So much the worse, though: 15 years of recklessness have brought the department to the brink of becoming another congressional fiefdom. The incoming attorney general will have to change an ingrained culture of cronyism and storm trooper mentality—while at the same time defending legitimate claims of executive power against Sen. Charles Schumer (D-N.Y.) and People for the American Way.

Good luck. If the Son of Man were to descend and separate the department's sheep from its goats, all he would get is another rigged trial, this time before the Senate Judiciary Committee. The job, if it is to be undertaken at all, calls for someone who can afford to commit political suicide because he no longer has a political life—or else, someone who will submit to that sacrifice because he feels the constitutional stakes in his bones. That universe, alas, is alarmingly small.

Michael S. Greve is the John G. Searle Scholar at AEI.