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OPINION | PHILIP HEYMANN AND CHARLES FRIED

The Bruce Ohr case threatens the independence of the Justice Department

Lesley Becker/Globe Staff illustration

By Philip Heymann and Charles Fried

Dear Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein:

Our experience over many decades of working in the Department of Justice tells us that a career service — sometimes called a civil service system — plays an essential role in our justice system. It often provides the necessary conditions of wise policy: the knowledge of history and of operations in each of a multitude of areas regulated in some way by federal law; the awareness of the stakes and beliefs of those private citizens who work in those areas; the integrity to tell the truth as a career official sees it, and to do that without political spin; and the independence to speak frankly even when disagreeing with those who can control their careers.

For over a century these conditions have been guaranteed by rules of the federal career services forbidding hiring or firing for political reasons and now expanded to guarantee procedural protections against political abuses in revoking a security clearance. These protections are essential in all aspects of federal employment; they are especially necessary for the investigators and prosecutors pursuing a possible obstruction of justice by a superior.

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Today there are several million federal civilian workers, and the jobs they occupy require access to classified material frequently enough to justify over five million security clearances. But a civil service system, with its important benefits, can be turned back into a system of political patronage by the simple expedient of the president using political or irrelevant personal characteristics to separate any one of those holders of security clearances from their clearances for the job they are doing that requires access to classified information.

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President Trump has announced his intention to do without the benefit of any procedural assurances of accurate fact finding in the case of Bruce Ohr, a senior lawyer in the Department of Justice. The precedent this would create would similarly allow the president to separate Robert Mueller and any of his staff from classified information about Russian cyberattacks or obstruction of justice during our past elections; or any FBI agent from classified information about cyberattacks in our coming elections. No factual or statutory justification would be needed, and indeed no procedural protections of the accuracy of factual determinations have been ordered, in the case of Bruce Ohr.

We need civil service type protections to produce foreign and domestic policy decisions based on knowledge, competence, and internal debate. We cannot afford to set aside our century of successful use of our civil service system and its protections, which were established to replace the manifold weaknesses and scandals of the patronage or political appointment system that preceded it.

We urge the president to reconsider his political use of the classification structure. We urge Congress to establish protections against political personnel practices much like those protections Senator Daniel Patrick Moynihan’s commission recommended in 1997. Finally, we urge the Supreme Court to clarify the boundaries of its decisions concerning the revocation or denial of security clearance, making clear that the presidential powers it affirmed in the Department of Navy v. Egan are consistent with its later limitation of such powers in Webster v. Doe and, more broadly, with the view summarized by the lower courts in the ensuing years.

We intend to circulate this letter widely among past leaders of the Department of Justice and of the US attorneys because we think the pending Ohr decision truly threatens to end the independence of the Department of Justice. Leaders such as yourselves must insist on a factual determination of a threat to our national security before revoking a clearance needed for the work of a member of the Department of Justice. Otherwise the independence of the criminal justice system will be put very much at risk.

Philip Heymann, a professor emeritus at Harvard Law School, was deputy US attorney general from 1993 to 1994 and assistant attorney general for the Justice Department’s Criminal Division from 1978 to 1981. Charles Fried is a professor at Harvard Law School and was US solicitor general from 1985 to 1989.