The revelation that employees at the Justice Department have supported Hillary Clinton's presidential campaign to the tune of $75,000 diminishes public trust in the department at best, prosecutors who spoke with the Washington Examiner said on Tuesday, and may suggest the department is too compromised to function properly at worst.
"'Justice is blind' is not an empty mantra," said Matthew Whitaker, a U.S. attorney under President George W. Bush. "The whole republic would be in jeopardy if justice was delivered at the political whims of the prosecutors at DOJ."
"It has never been thought of as a political institution," said Joseph DiGenova, a federal prosecutor for Washington, D.C. under President Reagan. "That doesn't mean there haven't been people in it who have been political. That has happened from time to time, but particularly now … and I would say disturbingly so."
Others took a more lenient view, but suggested there was still an image problem that warranted the appointment of an independent counsel to handle Clinton's case. The former secretary of state is being investigated, in part, over allegations that she mishandled classified information when she led the diplomatic department.
"Like everyone else in the United States, DOJ employees enjoy the freedom of speech, and they are certainly permitted to exercise that freedom by giving money to their preferred candidate," said Steve Levin, a former federal prosecutor and current partner at law firm Levin & Curlett. "The Hatch Act, which is designed to prohibit pernicious political activities, expressly permits DOJ employees to contribute money to political campaigns."
However, he added, "It's crucial that the criminal justice system not only be fair, but perceived to be fair. ... To my mind, I think the attorney general would want to ensure the integrity of the criminal justice system as well as the appearance of integrity and agree that an independent prosecutor is appropriate in this case."
Bradley Moss, a Washington, D.C. attorney specializing in national security law, emphasized that the contributions were not inherently improper. "Holding a political affiliation, in and of itself, does not mandate the conclusion that a person will therefore improperly use their official position for the benefit of their political party," Moss said. "To adhere to such a view as a default would render it impossible for any administration to ever be permitted to investigate, let alone prosecute, anyone even tangentially affiliated with the political and ideological leanings."
Prosecutors said the issue was that the department had already shown itself to be compromised, particularly in the case of Lois Lerner, the disgraced former IRS chief who led that agency in targeting conservative groups.
"The best example is the alleged career prosecutor who investigated Lois Lerner," DiGenova said. "She gave more than $6,000 to Obama's campaign … the appearance of a conflict of interest was staggering. The department thought it was just fine and didn't care what it looked like. It looked very disturbing. Their decision not to prosecute Lerner was suspect and had an appearance of impropriety."
DiGenova emphasized that political orientation wasn't the issue, noting that in spite of his appointment by Reagan, he had prosecuted his deputy secretary of defense, Paul Thayer, over charges of insider trading. "I had no problem prosecuting him," DiGenova said. "That's why it's so disturbing to see the way the Lerner case was handled, and why it makes one worry about the way the case will be handled with Clinton and her staff."
"Prosecutors are expected to be non-partisan and above the political fray," Whitaker added. He agreed that the attorney general should appoint a special prosecutor to take the Clinton investigation away from the department, arguing that the only reason to avoid it is a desire not to "give away [prosecuting] discretion to someone [outside] the DOJ chain of command."