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The crews are in place. White papers are being drafted. And with the presidential election less than six months away, the three presidential candidates — or their surrogates — are already thinking about how the Justice Department might look under a new administration. And so far, most of what the candidates are pitching sounds pretty familiar. National security, of course, tops their agendas, though none have really said what they would do differently to protect the country from terrorist attacks. Sen. John McCain, R-Ariz., has proposed going after online predators and child pornography — popular conservative initiatives that are at the heart of the current administration. The one wrinkle is that McCain has vowed to add human traffickers to that list. Beyond that, McCain’s plans for Justice aren’t very detailed. That may stem from the fact that the candidate has spent significantly more time trying to rally the conservative base by talking about the type of judges he would appoint. Just last week, McCain released a list of 48 legal advisers. Several former Justice officials, including ex-Office of Legal Policy chief Rachel Brand, are among those expected to work on Justice Department priorities. Former solicitor general Theodore Olson, who is chairing the advisory board (a job he had for failed GOP contenders Rudy Giuliani and Mitt Romney), says the committee hasn’t met. “It’s not something that’s happened yet,” says Olson, a partner at Gibson, Dunn & Crutcher. For the Democrats, it sounds like their Justice Department would look a lot like the one under President Bill Clinton. That’s probably because the chief legal advisers to Sens. Barack Obama, D-Ill., and Hillary Clinton, D-N.Y., were top Justice Department officials in the Clinton administration. Both Obama and Hillary Clinton say they would bring back the COPS program — a Clinton administration initiative that looked to cut the crime rate by offering grants to communities to hire more police officers. And both candidates say they would launch a similar community prosecution plan — another President Clinton crime-fighting strategy that put prosecutors in the communities they covered. Obama, who is being advised by Eric Holder Jr. of Covington & Burling, has pitched an effort to reform the Civil Rights Division, which under the Bush administration has been the source of many public battles over its policy decisions and hiring practices. Obama has said that, if he is elected, he would give the division chief 100 days to come up with a plan to diversify the work force. In perhaps his boldest statement regarding the Justice Department, Obama, responding to reporters’ questions last month, said he would have his attorney general review the Bush administration’s national security policies to see if any crimes had been committed. On that same front, Obama’s advisers say the Bush administration created unnecessary tension between national security and civil rights. “There’s no need to put people’s civil liberties at risk in order to provide a secure homeland,” says Holder, a former deputy attorney general in the Clinton administration. Not surprisingly, advisers to Hillary Clinton say she would have the Antitrust Division be more aggressive in its scrutiny of mergers and acquisitions. Another priority, according to Jamie Gorelick, a partner at Wilmer Cutler Pickering Hale and Dorr who is Clinton’s chief legal policy adviser, would be looking at deals the department has reached with corporate wrongdoers. Clinton’s attorney general would be given 90 days to review all deferred prosecution agreements struck under President George W. Bush. What follows is a snapshot of each candidate’s plans for their Justice Department. The information was gleaned from public information, news accounts and interviews with campaign insiders.
• SEN. JOHN MCCAIN • Advisers: Sen. Sam Brownback, R-Kan., a member of the Senate Judiciary Committee; Theodore Olson, a Gibson, Dunn & Crutcher partner and former solicitor general; William Barr, general counsel at Verizon Communications Inc. and former AG under George H.W. Bush. Possible AG: Theodore Olson; George Terwilliger III, a White & Case partner and former deputy attorney general. What McCain cares about: “I respect those who are advocates for an unregulated Internet in defense of freedom of expression. However, the Internet cannot be used as a safe haven for criminals and predators. … As president, I will move to clear obstacles to cooperation between federal agencies and their state and local counterparts.” (May 7 speech at Oakland University in Rochester, Mich.) Key issues: McCain appears to be pitching a Justice Department that would ramp up the prosecution of individuals. There’s been nary a word of any corporate crime initiatives or civil-rights enforcement. Specifically, McCain has proposed the creation of a multiagency task force to combat human trafficking — a “scourge,” he said, that brings between 15,000 and 18,000 slaves into the United States each year. Election monkey wrench: Is it too close to the Bush Justice Department to appeal to moderates and independents in the fall?
• SEN. HILLARY CLINTON • Advisers: Jamie Gorelick, former deputy attorney general now a partner at Wilmer Cutler Pickering Hale and Dorr; Nicholas Gess, former associate deputy attorney general now of counsel at Bingham McCutchen; Randolph Moss, Wilmer partner and former assistant attorney general in the Office of Legal Counsel; David Kris, Time Warner general counsel and former DOJ national security lawyer. Possible AG: Jamie Gorelick; Elena Kagan, Harvard Law School dean and former White House lawyer in Clinton administration. What Clinton cares about: “It is a sad day in America when the president can find hundreds of billions of dollars to police another country’s civil war, but cuts funding for police officers right here at home.” (April 11 speech in Philadelphia.) Key issues: Like McCain, Clinton’s big pitch is to go after individual criminals. She says she’ll do it by funding 100,000 new police officers with Justice Department grant money — something her husband had done. She also proposes spending $250 million to hire community-oriented prosecutors. As for corporate crime, Clinton says she would have her attorney general review all deferred prosecution agreements made between companies and the Bush Justice Department. Clinton is also promising closer scrutiny of proposed mergers. Election monkey wrench: Clinton’s chance to win the nomination appears to be fading fast.
• SEN. BARACK OBAMA • Advisers: Eric Holder Jr., a Covington & Burling partner and former deputy attorney general; University of Chicago Law School professor Cass Sunstein; Harvard School of Law professor Laurence Tribe. Possible AG: Eric Holder Jr.; former Sen. John Edwards, D-N.C. What Obama cares about: “What I would want to do is have my Justice Department and my attorney general immediately review the information that’s already there . … If crimes have been committed, they should be investigated. … [But] I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt.” (April 14 interview on holding White House officials accountable for national security policies.) Key issues: Obama says he plans to revitalize the Civil Rights Division and end hiring practices that put political appointees in charge. He also promises to give the division’s chief 100 days to come up with a plan to diversify the work force. He wants to boost criminal enforcement of hate crimes and the voting section’s election-related work. In addition, he says he’ll work to end crack and cocaine sentencing disparities and review the use of minimum mandatory sentences. Election monkey wrench: Obama could alienate center-right and independent voters by focusing too much on the Bush administration.

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