Don’t get distracted by Barr nomination. Whitaker is still a big problem at Justice.
It’s a positive step that President Donald Trump plans to name an attorney general whose nomination will now be carefully considered by the Senate, as our Constitution demands. But it does not alleviate the concerns that more than 500 Justice Department alumni expressed last week about the appointment of Matthew Whitaker to serve as acting attorney general.
In my current role as counsel for Protect Democracy, I helped to organize that statement. And I signed it as a former civil servant at Justice, where I worked for 19 years. My fellow alumni and I are acutely aware of the impact Mr. Whitaker’s appointment could have on the department’s vital work and institutional reputation. Our statement is not about politics. It’s about Justice’s mission of upholding our Constitution and enforcing our laws. I helped organize and signed the statement because of the department’s importance to our democracy, and to me.
For me, working at Justice was the realization of a years-long goal. From the time I studied American history in middle school, I knew I wanted to be a part of defending what makes our country truly great — our ideals (never yet fully realized, but tantalizingly attainable) of liberty, equality and equal justice under the law. Taking the oath of office to uphold our Constitution and laws and standing up in court to represent the United States was the greatest honor of my professional career. I will always remember what it felt like to say, “Kristy Parker for the United States,” and to have the responsibility that comes with that privilege.
Attacks on Justice forced me from the job I loved
When I was at the Justice Department, I prosecuted criminal civil rights cases, which involved making sure that law enforcement officers are themselves held accountable to follow the Constitution and laws they are sworn to uphold. In doing so, I had the opportunity to travel the country and ask ordinary Americans, witnesses and jurors, to participate in the process of making our Constitution more than mere words on a piece of paper. I had the privilege of doing work that was central to maintaining a functioning democracy — holding power accountable. It was profoundly satisfying to be part of an institution whose entire mission is ensuring that everyone is equal before the law, and that no one is above it.
I left the department last year after having worked under four presidents, both Republican and Democratic, starting with Bill Clinton. I was hired into the Civil Rights Division during the George W. Bush administration. For every moment of that time, I believed I was serving the department’s mission and upholding my oath. Those who remain continue to serve that mission and oath.
What finally motivated me to leave were the escalating attacks on the department itself, on its independence and its nonpartisan mission, from the current president and others. I wanted to be able to defend our democracy and the department’s central role in maintaining it. And that’s what I do at Protect Democracy, where I continue to work with Republicans and Democrats to preserve the institutions that stand between us and a more authoritarian form of government.
It is because I know firsthand what the DOJ means to our democracy, and because I have helped carry out its nonpartisan mission, that I am so concerned by an acting attorney general who has not been appointed in accordance with the constitutionally mandated process. The possibility that Mr. Whitaker’s appointment might be unlawful could place all of the department’s cases in legal jeopardy, threatening public safety and national security.
In fact, Protect Democracy — along with the Constitutional Accountability Center — is representing Democratic Sens. Richard Blumenthal of Connecticut, Sheldon Whitehouse of Rhode Island and Mazie Hirono of Hawaii in challenging Mr. Whitaker’s appointment.
But what troubles me most is the damage Mr. Whitaker’s appointment could do to the department’s reputation as an independent law enforcement agency. The appointment process laid out in our Constitution helps to ensure this independence. The appointment of William Barr will ensure that he goes through that constitutionally required process, but Mr. Whitaker’s appointment remains unlawful, and he must be replaced immediately, even as the Senate considers Mr. Barr.
Independence from the president
The Senate confirmation process is an opportunity for an investigation and public scrutiny of prospective attorneys general’s credentials, any conflicts that might prevent them from fairly enforcing the laws, and their independence from the president.
The nominees must publicly state what their law enforcement priorities will be and how past positions might affect their ability to enforce the laws as written. Time and time again, we have seen this process affect a nominee’s conduct in office, as we did when Attorney General Jeff Sessions recused himself from the investigations into Russian election interference.
The absence of Senate scrutiny of Mr. Whitaker’s appointment undermines the transparency that helps sustain the public’s trust. While political opposition to nominees can never be eliminated, it is possible to alleviate concerns about an attorney general’s qualifications and independence to reassure the public that the department’s fundamental mission is secure. I am hopeful that this will be the case in Mr. Barr’s confirmation process.
I know that independent law enforcement is possible because I saw it while I served under four presidents. I know that the public can have faith in the fair administration of justice because I saw that, too. Because the constitutional appointment process has played a key role in making it so, I stand with my fellow Justice alums in urging the president to protect the institution we love by the simple act of following the Constitution it serves to uphold.