Senate Must Demand Answers About Gorsuch’s Work for Scandal-Plagued DoJ

by Billy Corriher and Michele L. Jawando –

After Judge James Robart halted Donald Trump’s first travel ban, the president “lashe[d] out” at him and suggested that his ruling was somehow illegitimate. Stephen Miller, a White House adviser, said on television that the president’s executive orders “will not be questioned.” The courts are charged with interpreting the Constitution, including the limits on executive power, but the president does not seem to accept this fundamental principle.

With these constitutional questions looming, President Trump nominated Judge Neil Gorsuch to fill the empty seat on the U.S. Supreme Court. Some have asked for more information about Gorsuch’s work for the U.S. Department of Justice, or DOJ, in 2005 and 2006, at a time when the agency faced alarming scandals involving abuse of power. At his confirmation hearing on March 20, Gorsuch should be asked about his work at the DOJ.

Sen. Dianne Feinstein (D-CA) requested information on Gorsuch’s work on several cases related to executive power, as well as any work formulating DOJ policies. In his written answers to the Senate’s questionnaire, Gorsuch provided few details. On March 8, the DOJ acknowledged that Gorsuch reviewed the government’s legal arguments in lawsuits challenging the Bush administration’s broad assertions of executive power. The DOJ also disclosed nearly 150,000 pages of documents from Gorsuch’s tenure.

Before voting on Gorsuch’s nomination, the Senate must ask him about his work at the DOJ. A former DOJ official said in 2007 that the department engaged in a “destructive pattern of partisan political actions,” including political prosecutions. The same official said that the George W. Bush administration “rewarded loyalty over all else.”

Without more answers, the American people cannot be confident that Gorsuch will act as an independent check on the executive branch.

Giving the president a blank check to fight terrorism

After the September 11 terrorist attacks, the George W. Bush administration claimed very broad—some would argue unlimited—authority to prosecute the war on terror. The administration set up military commissions to try alleged terrorists outside the usual court system, and it claimed authority to waterboard and otherwise torture these suspects, despite federal and international laws that ban torture.

One of the detainees tried by a military commission sued the government over the commission’s unfairness and lack of due process. While he was at the DOJ, Judge Gorsuch signed off on the government’s brief to the Supreme Court arguing that it had inherent authority to try anyone it deemed an “enemy combatant” in a military commission and that courts had no authority to intervene.

The brief also claimed that the Constitution did not apply to detainees held at the Guantanamo Bay naval base because Cuba technically exercised sovereignty over the base. The Supreme Court forcefully rejected a similar argument in a 2008 ruling:

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. … To hold the political branches have the power to switch the Constitution on or off at will … would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.”

The Court rejected the government’s argument that those held at Guantanamo Bay, an area under the complete control of the U.S. government, could not challenge their detention. The opinion by Justice Anthony Kennedy said that judicial review in these cases serves as “an indispensable mechanism for monitoring the separation of powers.” The Court’s 2008 opinion noted that the challengers were “detained by executive order for the duration of a conflict that … is already among the longest wars in American history.”

Near the end of President Bush’s second term in 2004, the public learned that the DOJ’s Office of Legal Counsel, or OLC, signed off on the administration’s plans to torture suspected terrorists. The DOJ’s own Office of Professional Responsibility found that two OLC lawyers committed professional misconduct, and it criticized them for twisting the law to justify the administration’s actions. One OLC lawyer who signed the original “Torture Memos” was confirmed to a seat on the 9th U.S. Circuit Court of Appeals in 2003, before the memos surfaced.

Before the Senate decides whether to confirm Judge Gorsuch to a lifetime seat on the Supreme Court, it must ask the nominee about the extent of his involvement in the DOJ’s effort to ensure that the Bush administration had a blank check to do anything it claimed was necessary for national security. Does Judge Gorsuch agree with the views articulated in the government’s brief, that the president has nearly unlimited executive authority any time he claims it is needed to fight terrorism? In the Trump era, these questions are critically important.

Firing federal prosecutors because they were not ‘loyal’

In 2006, DOJ leaders fired nine U.S. attorneys—possibly as part of an effort to encourage federal prosecutors to use political considerations in deciding whom to prosecute. The DOJ Office of the Inspector General found that the firings “severely damaged the credibility of the Department and raised doubts about the integrity of Department prosecutive decisions.” The Inspector General confirmed that one of the prosecutors was fired because Republican politicians complained to the White House that he was not prosecuting Democrats for voter fraud and corruption. The U.S. attorneys who were not fired were described by a DOJ official as “loyal Bushies.”

Several members of the House of Representatives Judiciary Committee wrote a letter to the Attorney General describing “serious allegations … that some U.S. Attorneys who were not terminated, engaged in selective and improper targeting of Democrats for prosecution.” The letter discussed a study which concluded that from 2001 through 2006, the DOJ “investigated Democratic office holders and candidates at a rate more than four times greater (nearly 80% to 18%) than they investigated Republican office holders and seekers.”

The Inspector General also found that the DOJ Civil Rights Division engaged in politicized hiring practices from 2003 to 2005. A deputy assistant attorney general “improperly considered political and ideological affiliations” when he hired attorneys for the division. The attorneys he hired “were more than twice as likely to be Republican or conservative.”

Judge Gorsuch reported to an official who oversaw the Civil Rights Division. The Senate should demand to know whether he was involved in hiring and whether he saw the list of federal prosecutors to fire that was circulated among DOJ officials.

Gorsuch’s time at the DOJ raises serious red flags

Constitutional scholars have warned that the Trump administration does not respect the separation of powers. The president’s Supreme Court nominee worked for the DOJ at a time when it sought to give the executive branch a blank check to do basically anything it wanted in the name of national security.

The Senate should demand answers about Gorsuch’s time at the DOJ. Slate’s Dahlia Lithwick and Sonja West called on senators to postpone the Gorsuch hearing. They wrote, “The nomination of Gorsuch to the Supreme Court cannot be separated or shielded from the serious questions that plague the Trump presidency.”

With a reckless president implementing a discriminatory agenda and showing little regard for the limits of his power, the American people deserve to know whether a new Supreme Court justice would rubber-stamp the president’s actions.

Billy Corriher is the Deputy Director of Legal Progress at the Center for American Progress. Michele L. Jawando is the Vice President for Legal Progress at the Center.

Reprinted with permission from The Center for American Progress