Law and Disorder

By Michael S. Serrill

The grinding noise began the morning after the presidential election, emanating from the sixth floor of the Justice Department as the Conveyor-400 paper shredder started up. The giant machine is reserved for destroying highly sensitive documents -- not just shredding them but turning them into powder. "It made a terrible racket that went on for 2 1/2 days," says Rita Machakos, a paralegal who works nearby. She had never seen so many records destroyed.

Alerted to the incident, the FBI investigated but found no wrongdoing. Justice officials claim that the documents were merely duplicates of classified material. But the outcry over the shredding is illustrative of the intrigue and suspicion that currently consume the Justice Department. In recent years the agency has been rife with controversy over allegedly lax investigations, secret political motives, cover-ups and general malfeasance. Under Ronald Reagan and George Bush, the Justice Department gained a reputation, among Republicans and Democrats alike, as the most thoroughly politicized and ethically compromised department in the government.

Rebuilding the department's tattered image will be a monumental task for the Clinton Administration. But because of Clinton's difficulty in appointing a new Attorney General, the department remains the only Cabinet-level agency without an appointed leader. The person who is eventually chosen as the new chief of federal law enforcement will be handed a full plate of problems that extend back a decade. Among them: the continuing Iran-contra probe, the scandal involving the Bank of Credit & Commerce International, and lingering questions over Justice's role in the investigation of money and arms transfers to Iraq. Beyond that, the Attorney General will be called upon to rein in many of the country's 94 U.S. Attorneys, whose offices have in recent years been repeatedly charged with bending legal guidelines in the zeal to advance careers with heavy conviction rates.

Not least among the department's troubles is a near rebellion brewing at its main investigative agency, the FBI, where director William Sessions has been accused of abusing the perquisites of his office. A stinging report last month by the Justice Department's Office of Professional Responsibility included charges that he received preferential treatment on a home mortgage, allowed his wife to accompany him on 111 trips without compensating the government for her travel expenses, and flew a load of firewood on an FBI plane, among other offenses. To answer complaints of a double standard within the bureau, last month, shortly after the OPR report was made public, senior aides decided they would delay action against staff members who were accused of disobeying rules that the director himself had allegedly broken. But Sessions promptly overruled them, which heightened the uproar. Clinton's aides are privately saying they hope Sessions resolves the situation by resigning.

Inside the Justice Department, managers obsessed with political loyalty have created a climate of fear. To trace leaks to the press, the department has installed a new phone system that at the push of a button will list all the calls an employee has recently made. One career staff member who frequently complains about department policies says he has been forced to undergo several psychiatric evaluations. Jonathan Turley, a professor at the National Law Center, says the department's political bosses severely hampered his effort to investigate complaints of sexual harassment suffered by the department's female lawyers. "The bosses won't allow the department to be put in an embarrassing position," says Turley. "This is a tragic consequence of the culture. The whole Justice Department building needs to be scrubbed down by the Clinton Administration."

As many experts see it, the decline of Justice began with the appointment of Edwin Meese, Reagan's California crony and chief of staff, as Attorney General in 1985. After winning a bruising confirmation fight in which his ethical standards were questioned, Meese quickly steered all the resources of the department toward achieving the Reagan Administration's political program: to roll back civil rights gains, crack down on criminal defendants and the rights, they had been awarded by the courts, attack pornographers, curb abortion rights, and slow down enforcement of environmental laws. That agenda, with some refinements, remained in place through the administrations of Meese's successors, Dick Thornburgh and William Barr.

Donald Ayer, who served eight years in the department, believes that of the three men, Thornburgh did the most damage. "Meese pushed ideological positions beyond what the law supports," says Ayer, who served as Deputy Solicitor General under Meese and Deputy Attorney General under Thornburgh. But it was Thornburgh, he adds, who created "an employment philosophy that places personal loyalty and partisanship ahead of either competence or integrity." Ayer says he resigned from the department in 1990 "because of my disagreement with Thornburgh's handling of some ethical problems."

Politics have invaded the Justice Department in many Administrations, nearly always stirring up controversy over conflicts of interest. What is different about the Justice Department that Clinton is inheriting is the depth to which politicization has seeped into the bureaucracy, which includes 92,300 people working in prosecutors' offices, the FBI, the Drug Enforcement Administration, the Immigration and Naturalization Service, the Bureau of Prisons and other agencies.

Traditionally, career bureaucrats at Justice formed a strong middle- management layer that protected the department against the excesses of political appointees. But under Reagan and Bush, even the lowliest attorney had to pass an ideological litmus test. "When Reagan was elected, the political appointees came in and started handing out pink slips all over the place," recalls Stuart Smith, president of Council 26 of the American Federation of State, County and Municipal Employees.

"Lawyers at Justice have been co-opted to find legal rationalizations for policies adopted by the White House," declares Elliot Richardson, the Attorney General fired by Nixon in the Saturday Night Massacre for refusing to dismiss the Watergate special prosecutor. "The department should not be the law office for the Administration in power, but the embodiment of the fair and honorable administration of justice."

Even if it can't meet that lofty standard, the department needs to avoid the ethical lapses that have hurt its reputation during the past dozen years. Many of the most embarrassing episodes have occurred when the department has protected political interests under the cloak of national security. A sampling:

B.C.C.I.

From the early 1980s on, the Justice Department received hundreds of tips and complaints about the criminal dealings of this multinational bank, but apparently took no action because it knew B.C.C.I. had strong links to CIA covert operations and to the illicit transfer of funds for the Nicaraguan contras and arms purchases for Iran. The Justice Department investigation of the criminal banking empire was so dilatory that Manhattan District Attorney Robert Morgenthau's own probe went far beyond the federal effort.

B.N.L.

The Justice Department has been accused of dubious behavior in its investigation of the Banca Nazionale del Lavoro, an Italian institution whose Atlanta branch made $4 billion in fraudulent loans to firms owned by or doing business with Iraq. Justice investigators are charged not just with botching their probe into B.N.L.'s transgressions but also with ignoring evidence that B.N.L.'s Atlanta branch manager, Christopher Drogoul, was not solely responsible for the questionable loans. A 163-page Senate Intelligence Committee report issued last week on the affair suggests, however, that most of the Justice Department lapses were due to "bureaucratic bungling."

One victim of the B.N.L. scandal was Marianne Gasior, who blew the whistle on the Pennsylvania company she worked for, called Kennametal, when she learned that it was shipping sophisticated machine tools that could be used in weapons manufacture to companies controlled by Iraq. Some of the equipment was purchased with a B.N.L. letter of credit. Kennametal denies any wrongdoing. Gasior says that when she tried to report the sale to Justice Department officials, she was alternately ignored and badgered by prosecutors investigating the case until she finally took her complaint to Congress. Says Gasior: "Justice refused to do its job unless people embarrassed them into doing it."

SAVINGS AND LOANS

Last week the General Accounting Office, the investigative arm of Congress, issued a harsh report accusing Bush's Justice Department of failing to put enough resources into investigating the criminal dealings that resulted in the collapse of hundreds of S&Ls. Nearly 2,800 financial institutions went bankrupt in 1981 and 1992, with losses that could eventually total $300 billion. The Justice Department has almost 10,000 investigations under way, and its defenders point out that it has so far won 95% of its prosecutions for S&L fraud.

These high-profile cases are, Justice critics say, part of a pattern of mismanagement and ethical abuses that reach into the far corners of the department. U.S. Attorneys, who as presidential appointees can operate independently of the Attorney General, have been repeatedly accused of ethics violations. Among them: misleading grand juries, withholding and tainting evidence and entrapping defendants. Department overseers complain that prosecutors break the rules without fear of sanction. It is "the arrogance at the department that's so dangerous. Some of the same people who are responsible for dispensing justice believe they themselves are above the law," says Representative Robert Wise, Democrat, of West Virginia, who used to head the House Subcommittee on Government Information, Justice and Agriculture.

Speaking of the low esteem in which the department is held today, Ayer says, "All of these scandals are on the front burner at the same time. The real trouble is not whether they're true, but that they all seem so plausible in the minds of the public. It simply means the Justice Department has lost the public's trust."

Investigating prosecutorial misconduct is the job of the Office of Professional Responsibility, which is headed by a powerful career Justice lawyer named Michael Shaheen. Critics point out that the OPR has not kept pace with the department's growth. Justice's budget has increased from $4 billion in 1981 to $11 billion currently, while its staff of lawyers has grown from 3,800 to 8,200. Until late last year, Shaheen's office employed just six attorney-investigators, the same number as in 1979.

Thornburgh added to the perception of prosecutorial impunity in 1989, when he declared that Justice lawyers were not subject to disciplinary action by state bar associations. Federal judges were furious. "Recent history suggests that the Department of Justice is not at all conscientious about disciplining those department attorneys who engage in misconduct," wrote U.S. District Judge Marilyn Patel in a 1991 opinion.

The Clinton Administration cannot even begin to make needed repairs at the Justice Department until it finds an acceptable Attorney General. The department is being run now by Bush holdover Stuart Gerson, who insists that the agency is in "excellent shape." But transition officials have some clear ideas about the general direction of reform. First, they want to root out the "true believers" from the Reagan-Bush years. Then they want to establish stronger central controls of department operations. A high priority is the cleanup of the Environmental Crimes section, which one transition official said is "highly politicized and not objectively enforcing the law."

But transition officials insist that the greatest challenge is the least concrete: to make clear to the public that the Attorney General is not just the President's lawyer, and that the Justice Department is not in the pocket of whatever special interests hold sway in Washington at this political moment. "The new leadership is going to have to project the idea," says a Clinton adviser, "that we are going to enforce the law fairly, for all citizens."

With reporting by Jonathan Beaty and Roy Rowan/Washington