It is tempting to jump on the bandwagon and criticize the Justice Department  as a whole for its recent losses in the Edwards and Clemens cases.  No one was surprised by the results.  I know the prosecutors who worked on both cases and I respect them as true professionals.  

The Justice Department is an unprecedented mess.  Alumni from the Justice Department hear from our colleagues and friends that the inner workings of the Justice Department are in a shambles.  

The buck stops with leadership – the Attorney General, the Assistant Attorney Generals and other political leaders.  In management terms, we call this the tone-at-the-top: the tone right now is not one of leadership; it is one of mismanagement and political insecurity.  It is reflected in the poor performance of the Attorney General on Capitol Hill, which reflects his lack of leadership –the ability to outline a vision, carry it out and make sure that resources are in place.

In fairness, the Justice Department has had three significant accomplishments – FCPA enforcement, fraud enforcement and antitrust enforcement.  The Department’s record in this area has been unparalleled. 

The Justice Department is a very resilient institution, filled with incredibly talented career prosecutors and leaders.  They form the backbone of the Department and have a rich and lustrous tradition.

 Instead of relying on its accomplishments and the professionalism of its career attorneys, the leadership of the Justice Department has embroiled itself into a variety of controversies.

 For some reason, the Attorney General has signed off on a public profile promoting issues which are certainly laudable but more likely to be viewed as political in nature.  I do not mean to suggest that the Attorney General should not address civil rights, immigration enforcement, or other issues which are consistent with the Administration’s overall views.  However, there is a time and a place and a way to pursue those policies without jutting out your chin, begging for a partisan response.  Sometimes aggressive positions and sloppy partisanship reflects the insecurities of the messenger himself.  For that, the Attorney General’s performance has been woeful.

 The Attorney General’s leadership on the Fast and Furious issue is a further example of a leadership failure.  Without getting into the substance of who is right or who is wrong, the Attorney General’s performance on the Hill has been inadequate.  There is a way to handle these issues and he has not stepped up to the plate politically to put this issue to rest.  Of course, it has turned partisan and part of that is his own fault in failing to lead, direct the Department and nip the issue in the bud.  His failure is reflected in the fact that he now faces Congress citing him for contempt.  It is unprecedented and so harmful to the instutition which he leads for this issue to even come so close.

 The Tale of Two Departments is reflected in the Edwards and Clemens cases.  A vacuum in leadership leads to poor choices, improper exercise of prosecutorial discretion.  The American public, as reflected in the jury decision, wants the Justice Department to focus on issues of real importance – prosecuting those responsible for the financial crisis on 2008-2009, and allocating resources to focus on issues of real concern to the American public.

The Attorney General needs to take a deep breath, walk the halls of the Justice Department and listen to the career prosecutors, and most importantly, gain a little confidence, tackle some hard issues, and start to use his leadership skills in a way to advance issues of real public concern.