Beverley Lumpkin: Halls of Justice

Former Attorney General Janet Reno would always wax rhapsodic about how much she enjoyed the process of testifying before Congress, and how important and democratic, etc., etc., it all was. Everyone else (including her staff) rolled their eyes, but she actually meant it.

We didn't hear any of that from Attorney General John Ashcroft this week, and his appearance before the Senate Appropriations subcommittee certainly didn't produce huge headlines; it was even buried in the department's own news clips.

But no news didn't necessarily mean good news for the attorney general, either. On several matters, large and small, there were strong indications he (and the administration) may not have it all their way.

FEMA Wins ... Or Does It?

I reported a few weeks ago about the surprises in the Justice Department budget, the most — OK, I'll say it — shocking of which was the loss of the Office of Domestic Preparedness and its $234.5 million to the Federal Emergency Management Agency.

Such a thing is, of course, a huge bureaucratic loss. Several senators expressed displeasure with the move. Sen. Judd Gregg, R-N.H., the ranking member who when he served as chairman was totally engaged in the issue of domestic preparedness, even before Sept. 11, was clearly unhappy.

He asked, if the FBI is going to be the agency in charge of a crisis situation, "recognizing that the first group on the ground is going to be first responders, the local police, fire and medical, shouldn't the FBI or the people who they're dealing with have gone through the Department of Justice training process or a process which gave them entree into the Department of Justice vs. some other agency?"

Ashcroft could only weakly respond that Justice will certainly "continue to do a lot to train." He refused to say what advice he had given the president on the matter but stoutly maintained he supports the decision to strip his own agency of the Office of Domestic Preparedness.

Other senators were also critical, and some pointed out that FEMA has never been a grant-making agency; that it lacks the structure and systems and controls to suddenly start doling out large sums of money.

Chairman Sen. Fritz Hollings, D-S.C., was of course most voluble on the subject, and he certainly raised the specter that the change will not pass. He pointedly noted that as recently as October, when the new counterterrorism law was signed, the aid to first responders was still in the Justice orbit.

He even read from the law, "The attorney general shall make grants described in subsections b and c to states and units of local government to improve the ability of state and local law enforcement, fire department and first responders ..."

Warming up, Hollings declared, "I haven't heard anybody in the Congress say this is a good idea, or in law enforcement." He noted earlier testimony from the attorney general that the program was really working, with 46 states having submitted their training plans, and calling it a "miraculous success."

He reminded Ashcroft not to mess with something that's working: "Just to give it to [FEMA Director] Joe Allbaugh, who doesn't know anything about law enforcement!"

Then he warned — and remember, this is the man who holds the purse strings — "That's a nonstarter as far as this subcommittee is concerned."

He reminded the attorney general that Justice has the ability, the training, the developed culture. "We can't start here and say we're fighting counterterrorism when we're mixing up everybody in new assignments … It's just, in this committee's opinion, and you can see on both sides, no support whatsoever."

Are you listening, White House?

Media Merger Mania

A few weeks ago there was a totally peculiar press conference at the Federal Trade Commission. The joint presser between the FTC and Justice's Antitrust Division had been called to announce a grand agreement, a memorandum of understanding, on how the two agencies would divvy up oversight of mergers.

But as reporters waited, and read the paperwork that had already been handed out, the entire event was suddenly canceled. FTC Chairman Timothy Muris and Assistant Attorney General Charles James had somehow failed to gain the approval of — or even notify — a certain powerful member of Congress: again, Sen. Hollings, this time wearing his Commerce Committee hat.

Democratic members of the FTC had been unhappy that their chairman had not consulted them further, but it was Hollings' fury, all sources agree, that put the kibosh on the press conference. Justice and FTC folk have been negotiating with his staff ever since.

The problem for the two agencies is that they both review high-profile mergers for antitrust implications, and sometimes the battles over which agency will review which merger have become almost bloody.

The negotiating wreaks havoc for industry, too. As the attorney general testified, "In the 30-day clock that begins running when the filing is initially made, sometimes over half that time period has been lost because a decision hasn't been made which agency's going to pursue the matter."

To Justice and the FTC, it just makes sense instead to have an efficient process in place so that all parties will immediately know which agency handles what. Both Muris and James consulted with their predecessors of both parties, and seven of them submitted a letter fully supporting the idea of a process to allocate cases. (They are: former assistant attorneys general under President Carter, Sanford Litvack and John Shenefield; under President Reagan, Charles Rule; under President George H.W. Bush, James Rill; under President Clinton, Joel Klein, Douglas Melamed and John Nannes; and former FTC chairmen under Reagan, James Miller, and under Clinton, Robert Pitofsky.) However, none of them signed off on the specific proposal.

Hollings and some consumer groups are disturbed because the FTC would basically cede all media and telecom mergers to Justice. Justice would also get software, and FTC would have health care, energy and defense cases.

As one critic complained to Business Week, Justice would have the "new economy," and FTC would be stuck with the "old economy." Consumer groups fear that Justice would be more susceptible to political pressure than would an independent agency like the FTC.

One antitrust attorney told me it's not only an "absolutely" good thing to settle ahead of time who does what, this agreement is also "pretty close" to being right on which agency has which expertise. But he also noted the "arrogance" of Muris and James in thinking that their only constituency is the antitrust bar, their only responsibility to consult only with antitrust lawyers.

Hollings' spokesman pointed out that the senator is strongly opposed to further consolidation in the media industry; he supports both diversity in the sources of information and local control of outlets. He also noted that Justice is mainly concerned with violations of law, whereas the FTC considers the impact on an industry and the consumer.

So this was another subject on which, during the attorney general's appearance before the appropriations subcommittee, Hollings was loaded for the proverbial bear. The attorney general explained the inefficiencies and unfairness of the current system. And he outlined how the cases had been allocated: "It seemed to make sense that these agencies get together and agree that where there is an expertise that's been developed, we could have a kind of allocation which is understood and roughly divides the work, but focuses on and capitalizes on the capacity and expertise" of each agency.

Thus, in the telecom and media arena, he pointed out, in the past five years there had been a total of 45 mergers, and they had all been handled by Justice. Over the past 10 years, for such cases, Justice handled 154 and FTC 22.

So therefore, "There is an expertise there that has been assembled in the Department of Justice to handling these cases."

Ashcroft's seemingly reasonable, even unassailable, explanation seemed to fall on deaf ears. "You're right in all of what you say," replied Hollings, "but the intent of Congress was that they have that concurrent jurisdiction ... There's the intent of Congress, now you're going to start legislating. You're going to take it away. They're not going to have any more media cases before the Federal Trade Commission. And [here comes the hammer] here I've got to authorize."

Again, the not-so-subtle reminder of who holds the purse strings. Hollings concluded the dialogue on this subject with the now familiar admonition: "I can't find anybody in the Congress that says that's a good idea."

COPS Disconnect

To those who remember some of the battling over President Clinton's 1994 crime bill, which included funding for 100,000 new police officers (which became known as the COPS program), the attorney general's warm endorsement of the program once vilified by Republicans sounded odd.

"Let me just say to you that I think it is a good thing. I think it's worked very well. ... I don't know of a federal program that's been more successful," Ashcroft said.

He praised also the fact that fully 92 percent of local law enforcement agencies had continued the funding for the new officers once the federal funds had been expended. "And I wish all of our programs had the 92 percent sort of endorsement ratio of after having been in place that they were so successful that the local authorities thought they were willing to put up the money to continue them. That's a wonderful endorsement."

However, this administration wants to do other things with that money, so it's virtually eviscerating what remains of COPS.

Democratic senators were bemused by Ashcroft's praise, and amused that he was both praising and burying the program. Sen. Herb Kohl, D-Wis., shook his head and said he'd just "sort of leave it there, because I think you're saying it's a great program, been a great success, and we're moving in another direction."

But Sen. Patrick Leahy, D-Vt., couldn't resist a slightly sarcastic question: "Does it say that, in your honest judgment, we've reached the limit of ... what success there is in hiring additional law enforcement?"

The attorney general replied: "It demonstrated very clearly that if you put additional resources into the law enforcement mix, you can improve the quality of life for people. That having been demonstrated for local decision makers, they need to decide whether they want to put more resources into law enforcement or whether they feel that they're at the right level."

For some, it seemed a beautiful demonstration of the differences in political party philosophies.

Beverley Lumpkin has covered the Justice Department for 16 years for ABCNEWS. Halls of Justice appears every Saturday.