Wednesday, March 14, 2007

Giuliani on independence and integrity in the Justice Department

I used to have a high opinion of Rudolph Giuliani. It was a long time ago, but it's true, and this is a good time to write about it.

Back in the 1980's when Reagan was president, one of the things he did was embark on a systemic practice of illegally denying and terminating Social Security disability benefits. It was universal across the country. One of their most egregious practices was a policy they called nonacquiescence, which meant that when a federal court decision went against them on some legal principle, they would simply ignore it, refusing to apply the same legal principle to other cases in which it applied. What was probably even worse, though, was "Bellmon review". This was a policy they adopted in which the administrative law judges who decided appeals would be pressured and subjected to close scrutiny if they ruled against the government too often. Let me repeat that: the administrative law judges were supposed to be independent, but if they ruled against the administration they would be punished for it. The association of administrative law judges sued the Social Security Administration over that one, and won.

Here's how Giuliani fits in: Social Security has a series of steps of administrative review, in which a denied or terminated applicant or recipient can seek to have the initial decision changed, and after the appellant exhausts all the steps of administrative review they can sue the Administration in federal court. I don't know how many cases are filed now, but it used to be tens of thousands. Like most other cases filed against the federal government, when a case like this is filed it is up to the local U.S. Attorney's office to defend the government. In these cases, though, most of the actual work is done in Social Security regional counsels' offices around the country. They would review the record, including the transcript of the hearing and all the medical and vocational evidence, research the law, and write the brief, and then ship the whole thing down to the local U.S. Attorney, who would have one lawyer assigned to handle these cases. That lawyer would sign it all and file it in the U.S. District Court,, and would then have to argue the case when it was ready.

As time went on the positions the Social Security Administration was taking in court grew increasingly outrageous, just without any legal, factual, or moral justification. Things got so bad that when Giuliani was U.S. Attorney in New York he announced that his office would no longer sign off on the briefs they were sent by the Social Security Administration without doing their own independent review of the merits of the case. This may seem like a small thing, but it really isn't, because it meant that he was standing up not only to the Social Security Administration but also to the whole Department of Justice. (This was in the days of the "Experts Agree: Meese is a Pig" t-shirts.) In other words, he was saying that as a U.S. Attorney, confirmed by the Senate, he was not going to put his name and reputation behind the court filings prepared by his superiors until he could satisfy himself that they were justified. The credibility and integrity of his office, and his personal integrity, were too important for him to simply fall into step behind the bosses.

Turn the clock forward twenty-five years or so to another scandal affecting the U.S. Attorneys. Eight of them are fired for political reasons, whether it's because they won't persecute--oops, did I say persecute?--the political enemies of the Bush Administration, or just to give Bush cronies a boost onto one of the stepping stones to a federal judgeship down the road. You would think that someone concerned about the integrity and independence of U.S. Attorneys would have something very negative to say about that, wouldn't you?

So would I, so I'll bring you Rudy Giuliani's official position on the U.S.Attorney purge: there will be no statement. That's right, no comment.

So much for Giuliani's integrity.


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