Government & Law

The US Attorney General – A Need to Rethink?

December 24, 2018

According to Wikipedia:

The United States Attorney General (A.G.) is the head of the United States Department of Justice per 28 U.S.C. § 503, concerned with all legal affairs, and is the chief lawyer of the United States government.  Under the Appointments Clause of the Constitution, the Attorney General is nominated by the President and appointed with the advice and consent of the Senate. The Constitution provides that civil officers of the United States, which would include the Attorney General, may be impeached by Congress for treason, bribery, or “high crimes and misdemeanors”. The Attorney General may be removed at will by the President under the Supreme Court decision Myers v. United States, which found that the President may remove executive branch officials without the consent of the Senate or any other entity. The common law further suggests that the President has the power to remove an official engaged in purely executive functions or an official whose duties immediately affect the President’s ability to fulfill his constitutional responsibilities, (Bowsher v. Synar, 1986).

As we have discussed before we are experiencing a time when the country is extremely polarized.  In particular, our politics, and the political processes.  It has become confrontational, and combative.  It seems that the highest political priority is the preservation of the political party and it associated ideology, and not the general welfare of the country and the citizenry.  Even more troubling is the trend to politicize all of our government institutions.  With the appointment of the latest supreme court justice we have seen the cancer spread to the supreme court.  A politicized court can only mean less confidence and support from the ‘people’.  This is not what was intended by our founders.  The supreme court must be above the political fray to be effective.  To the topic of this blog, the office of the US Attorney General, the signs are already clearly there.  If the Executive branch is to be the subject of investigation, the Executive should not be in the position to select the AG.  If the Legislative branch is politically motivated to influence an investigation, it should not have undue leverage over the Justice Department.  Further, the AG should not be a political crony or have an obvious political agenda/bias.  So the clear challenge is how to isolate the AG from the ongoing political conflict that is ongoing and probably continue and possibly intensify.

The office of Attorney General exists in all 50 US states.  The duties and responsibilities are similar to the US AG, but at the state level.  In 44 of the states the AG is elected by the people.  Most importantly electing an AG works.  It is not something new and untried.  So why not thing about this at the Federal level?  It would be difficult because it would require a change to the constitution.  But it might be worth it.  The AG would still be a part of the President’s cabinet, but the threat of removal at the pleasure of the President would not exist.  This would liberate the AG from this potential concern and allow him/her to pursue what is in the best interest of the Nation, while still accepting priorities from the President.  Political appointments would still be approved by the Senate.  Presumably nominees would be the result of negotiation between the elected AG and the Office of the President.  Nothing would change with regard to the Congress’ impeachment powers as they would still apply to the elected AG.  The critical issue with such a change is how candidates for this office would be selected.  My sense is that it should be a non-political position.  The political parties would not put up candidates.  Rather, to ensure well qualified candidates and to retain involvement of the 3 branches of government, one candidate would be put forward from each branch (the Office of the President, the Judiciary committee of the Senate (with a super majority vote to reduce political partisanship, and one from the Supreme Court).  Presumably there would be some minium criteria for potential candidates, such as minimum age, Law degree and qualifying experience.  The term of office would be 4 years.  A majority of the national popular vote would determine the winner.

The idea of an elected AG is not new.  You can find opinion pieces on the subject.  One of the arguments against this concept is that it is like creating a fourth branch of government.  I disagree.  It remains a part of the Executive branch, still a cabinet position, still receiving input from the Executive, but not interference or political pressure.

Clearly this would be a dramatic and contentious change.  The kind of change that only may be possible when faced with crisis.  My cynical view, however, is that we may indeed be headed for political crisis.  When and if that time comes, I hope that this idea is among those debated when crafting a solution.


Photo by A. Strakey

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