An "Independent Attorney General"?
In the Wake of the Controversy over U.S. Attorney Firings, the Next President Will Need to Set Guidelines for White House/Justice Department Interactions

By EDWARD LAZARUS

Thursday, May. 10, 2007

The weeks go by, and Alberto Gonzales remains the Attorney General of the United States. And with every passing week, the scandal over the Bush Administration's now infamous firing of eight U.S. Attorneys drags on. Further Congressional hearings are slated for this week.

Whether or not Gonzales remains Attorney General for the remainder of the President's term, and whatever further revelations may emerge about the reasons behind the U.S. Attorney firings, one thing is certain: The next president is going to have develop policies about the proper relationship between the Justice Department and the White House, and what role politics should play in Justice Department decisionmaking. In this column, I'll consider which policies he or she should choose.

Should the Attorney General Position Be Treated Like the FBI Director Position?

Figuring out which policies are optimal is a lot harder than it might sound at first blush. In the midst of Gonzales's travails, the calls for an "independent" Attorney General have become commonplace. But that is more platitude than proscription for reform. Attorneys General should not be completely "independent" of the Presidents who appoint them. And it would be an error if, out of pique with the current Administration, Congress or public opinion were to go overboard in mandating change to this effect.

One idea that seems to be gaining a following is to remove the Attorney General position from the president's cabinet, and depoliticize the position by appointing the AG for a fixed term of years that transcends the term of any one president. The FBI Director position works this way (as do some other important posts). Presidents appoint FBI Directors for a fixed term of 10 years, thus ensuring that Directors do not serve coextensively with any one president.

In theory, this guaranteed tenure assures the FBI Director a greater degree of political independence from the White House occupant responsible the appointment. It also ensures that the Director's prospects for reappointment will depend on the views of a president different from the one who made the initial appointment - and, thus, may reduce the political allegiance of a Director to his or her appointing president, or even appointing party. (A Democratic appointee may need to curry favor with a Republic to be reappointed, and vice-versa.)

This arrangement makes a good deal of sense for the position of FBI Director. It's dangerous to give a president too much political influence over the closest thing we have to a national police force. The opportunities for abuse are just too great - and, historically, have sometimes surfaced regardless of the structural safeguard of how Directors are appointed. But I'm unconvinced that the fixed-tenure concept would translate well to the Attorney General position.

Should Attorney Generals Be Utterly Apolitical? Of Course Not

The reason is straightforward: We don't want the FBI Director to be linked particularly strongly to the policies favored by one president or another. But the opposite is true with respect to the Attorney General. While we don't want cronies or knaves, we probably do want someone closely aligned with the president's politics and philosophy.

After all, we support presidential candidates in no small part because of the policies we believe our favored candidate will implement, if elected, on issues central to the Justice Department's mission. Sometimes, as in 1968, the Justice Department's agenda is front and center in the presidential campaign. Richard Nixon, for example, ran explicitly on a "Law and Order" platform - and when he won, his supporters had every right to expect that his Justice Department would take a very different approach to social unrest than had the Justice Department under President Lyndon Johnson.

It is easy to imagine Justice Department issues getting significant play in the 2008 campaign. Indeed, it would be shocking if our selection of the next President did not include significant debate over such issues as how the next President's Justice Department should balance our commitment to civil liberties with our national security needs, whether our immigration laws should be reformed (an issue with a considerable federal law enforcement component), and not only as to what extent gun control is good policy, but also to what extent it is constitutionally permitted under the Second Amendment.

It makes no sense for us to elect a president with a particular platform on these (and other) vital issues, yet hamstring that president from implementing his or her policy ideas by denying the president the right to name a likeminded Attorney General. That would mean handing the Attorney General the power to stymie the very policy initiatives that carried the day in the election. This makes no sense to me.

The Reason Attorney Generals Should Not Be Subservient to the White House

The problem, of course, is where the line should be drawn between having a likeminded Attorney General help institute a president's policy agenda, and having an Attorney General who is completely subservient to the interests of the White House.

There is no magic formula for drawing this line. The best general articulation I can muster is to distinguish between policy and partisanship.

We want the Attorney General to be in line with presidential policymaking. This alliance may encompass decisions about how to set Department priorities, allocate resources, fashion new initiatives, and interpret the Constitution and federal laws it is charged with enforcing.

This does not mean that the Attorney General should simply be the handmaiden of presidential policy. Ideally, the Attorney General will have the character and backbone to give the White House frank advice, independently arrived at, when the president is considering overstepping the bounds of what is allowed by law.

The Justice Department's Office of Legal Counsel is designed to provide just this kind of "checking" function. And, similarly, the Office of the Solicitor General, which represents the United States before the Supreme Court, also has a special role to play in maintaining a degree of continuity in the law regardless of changes in Administration.

Overall, however, it is and should be the Attorney General's job to serve the people of the United States, by helping the president implement the view of "justice" on which he or she won election.

What we most assuredly do not want is an Attorney General who fails to distinguish between implementing policies and playing politics. The Attorney General has no business harnessing the Department to the electoral interests of either the president or the president's political party, by using the enormous power of investigation and prosecution in a politically- biased fashion. Nor should the Attorney General be firing Department officials who resist the politicization of their offices.

Internal Department of Justice Checks Against Politicization Exist, But Are Not Enough

The Department of Justice already has a number of internal checks to avoid these abuses, in the form of a raft of policies governing when prosecutors should and should not bring cases, put in place as a way of cutting down on potential abuses of discretion. Some Attorney Generals have also established guidelines for contacts with the White House or elected officials, in order to avoid tipping the scales of justice in inappropriate ways.

To be sure, the public disclosures related to the recent firing of the eight U.S. Attorneys suggest that a review - and possible revision - of these internal checks is in order. Responsible congressional oversight is important as well.

But we also need to resist the natural temptation that arises in the midst of political uproar to fix one problem by creating another.

It is beyond human wisdom for an "independent" Attorney General to discern how best to pursue "justice" in the abstract. In our democracy, the concept of justice is, in part, a product of political debate - and we must preserve the flexibility of those we choose to elect, to pursue the vision of justice that won our support in the first place.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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