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AS ATTORNEY GENERAL, ASHCROFT WILL GO NOWHERE FAST: Reflections On The Institutional Constraints That Weaken Attorneys General


Friday, Jan. 19, 2001

President-elect Bush's selection of the controversial John Ashcroft to be attorney general has focused attention on this important cabinet post. The Department of Justice is charged with enforcement of federal laws, and the attorney general represents the United States in all courts. But the debate about this nomination strikes me as purely partisan, and missing the point.

In the real world, regardless of whether you agree or disagree with Ashcroft on matters like abortion, civil rights, affirmative action, gun laws, separation of church and state, and other issues, you should not be overly optimistic if you are for him, nor unduly worried if you are against him.

Based on my experience as an associate deputy attorney general (a post sufficiently high to observe and appreciate how the Justice Department truly operates), the personal political philosophy of an attorney general is not easily imposed on the administration of the Justice Department. This is true because attorneys general serve several masters. Equally important, they must run the department through the career attorneys of the Justice Department, who are anything but no-questions-asked soldiers.

The Historical Weakness of the Attorney General Post

If confirmed, John Ashcroft will be the 79th attorney general, filling a post that was created by the First Congress in 1789.

The reason Randolph did not want the job was because he perceived it as a weak post. Randolph was correct then, and notwithstanding many changes in the authority of the attorney general, vis-à-vis that of the occupants of other cabinet department offices, he may still be correct now: The attorney's general's office remains among the weakest.

When examining the historical role of the attorney general in our constitutional scheme, Professor Bloch found that this cabinet post is unique because the occupant serves "three masters" — the president, the Congress and the courts. That reality is as true today as it was in 1789.

Restraints on Any Attorney General: The Power of the White House and Congress

The ad hominem arguments for and against the Ashcroft nomination overlook the inherent restraints on the office. Of the many cabinet fiefdoms on the federal landscape, none is more constrained than that of the attorney general.

There are both external and internal limits on what an attorney general can and cannot do, so those who are excited at the prospect of an attorney general who shares their views should curtail their expectations; while those worried about an attorney general who holds beliefs inimical to their own need not be overly concerned. The Ashcroft confirmation hearings have focused on hypothetical situations. This is more politically interesting than the reality of all the controls that restrain all attorneys general — but it is those controls, not the political fights of the confirmation, that will truly shape Ashcroft's term in office.

External control will come from the White House. An attorney general must answer to the president, for he serves at his pleasure. Because the president is politically responsible for the actions of his attorney general, the White House keeps a close eye on the operations of the Department of Justice. Clearly, any attorney general who fails to follow the policies of the White House will be asked to resign. No attorney general is going to proceed hell-bent on changing the law of the land without the blessings of the White House.

Further control is imposed by Congress. It takes money to run the Department of Justice, and Congress controls the purse. Senate and House of Representatives appropriations committees keep a close watch on the spending of the Department of Justice, and Congress is not shy about expressing concern about its performance. Nothing focuses publicity on a department or agency faster than Congressional criticism, be it from the majority or minority party. And no attorney general is immune from public opinion.

In addition to controlling the funding, Congress also has oversight jurisdiction of the Department of Justice. It is not pleasant for the department's officials to visit Capitol Hill when they must explain why and how the department is enforcing, or not enforcing, the laws, or how the department is determining which cases to take, or not take, to the Supreme Court. Congress is constantly asking formal and informal questions about such matters.

The fact that the Congress and Executive Branch are controlled by the same party does not mean those out of power will not raise a ruckus. Congressional Republicans, who spent decades watching both ends of Pennsylvania Avenue run by Democrats, have written a book on how to maintain oversight when one's party is out of power. Now it is the turn of the Democrats to take a few pages from that book.

While the president and Congress can direct and control, to varying degrees, all the cabinet department officials, the attorney general has the sole responsibility of dealing with the courts, the Judicial Branch.

Because the attorney general represents the United States, in both civil and criminal proceedings throughout the country, he has an ongoing, continuous relationship with the Judicial Branch. The courts, of course, have the power and authority to influence, and in many instances to control, the actions of the attorney general (or his or her representatives), simply by issuing adverse rulings, awarding damages against the government, or enjoining government actions. The courts are continuously telling the Department of Justice what they want it to do, or not do.

Also, attorneys general, and their representatives, must be admitted to practice before the federal courts, and this fact imposes an added responsibility. As members of the bar, attorneys have a special duty to the judicial system, and a responsibility to seek justice, as "officers of the court."

Another unique and potent internal restraint on any attorney general is the fact that he must work with, and through, over 9200 attorneys, who are employed by the Department of Justice in the divisions and offices in Washington, and the United States Attorneys' offices throughout the country. Having worked with a wide cross section of these lawyers, both during my tenure at the Justice Department and White House, and as recently as last year as an expert witness for the government, I can attest that these men and women are overwhelmingly non-partisans. They take their responsibilities seriously, and do not hesitate asking questions of their superiors.

Of course Justice Department lawyers have political views. But they know those views are irrelevant to their representation of the United States. Because I know many of these lawyers, I appreciate that no attorney general can impose his or her personal will on these professionals, nor will these attorneys perform in any manner contrary to their own perception of their responsibility. These lawyers represent all the American people, not Republicans or Democrats, nor conservatives or liberals, exclusively.

Given all the restraints imposed by the president and Congress, the Judiciary, and the professionals within the Justice Department, it is not an attorney general designate's political views that should be of paramount concern, but rather his administrative skills. The Department of Justice employs over 85,000 people in offices in every state, all major cities, and throughout the world. Its lawyers, investigators and agents seek to protect Americans against criminals, ensure healthy competition in business, safeguard consumers, and enforce drug and immigration and naturalization laws.

Seldom does a confirmation proceeding focus on this aspect of a nominee's qualifications, and the Ashcroft hearings have been no exception. Yet it is this skill, or lack thereof, that will in large measure determine the success or failure of an attorney general. In recent decades, those who have been good administrators have been found to be good attorneys general — regardless of their politics. Examples range from William French Smith during the Reagan years to the first woman to fill the post, Clinton's attorney general Janet Reno, who is greatly admired and appreciated within the Justice Department.

Why Ashcroft Will Be Confirmed

The Senate will not refuse to confirm one of its former members because of his political views, and thus Ashcroft will be confirmed.

These promises should satisfy all but extremist and committed partisans. John Ashcroft will be confirmed with a vote that may be as high as 75 to 80 in favor, so he will soon settle into the attorney general's offices on the fifth floor of the Department of Justice.

When reading a background story about Ashcroft's days as a former Hillcrest High quarterback, I thought about attorney general Bobby Kennedy and his deputy attorney general Byron "Whizzer" White — the University of Colorado football All-American, Rhodes scholar, decorated Navy officer and later one of the longest-serving Supreme Court justices in history. They used to toss a football around the high ceiling of the main office in the attorney general's suite, while tossing around ideas.

A football analogy is apt. While an attorney general calls the plays, what he can and cannot do as quarterback is also determined by his team, the men and women he selects to assist him in running the department. Those selections will be the first real signal that tell us how John Ashcroft will perform as attorney general, providing a much better indication than any of his answers during his Senate confirmation.

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