It Is Time We Start Electing the U.S. Attorney-General

by Tony Wyman

The United States Attorney-General is supposed to work for you and me, the people of this country, not anyone else, including the president of the United States, to insure that justice is served across the nation.  But as Bill Barr just demonstrated, that doesn’t seem to be the way the current AG’s understands his job description.

“I suspect that the president was pretty pleased with the performance of Bill Barr today and particularly on the issue of obstruction,” said Fox News commentator Chris Wallace about the Attorney-General’s press conference held before the release of the Mueller Report on Friday.  “You got into this very curious area where the attorney general seemed almost to be acting as the counselor for the defense, for the counselor for the president, rather than the attorney general: talking about his motives, talking about his anger, his feeling that this was unfair and he was being — there were leaks. And really as I say, making a case for the president.”

Perhaps we shouldn’t be surprised that Mr. Barr, who auditioned for the role of presidential apologist nèe attorney-general back in June 2018 when he penned a 19-page get out of jail free card explaining the president couldn’t be found guilty of obstruction of justice, sees his job as, first and foremost, defending Mr. Trump against threats to his office, including legal ones.

In the memo Mr. Barr wrote hoping to land the country’s top law enforcement job, a job he first held from 1991 to 1993, he claimed the president could legally interfere in Justice Department investigations as part of his executive duties and that such interference wouldn’t constitute obstruction of justice. The reason why, according to Mr. Barr, is the president’s executive authority legally empowers him to oversee Justice Department investigations, to make personnel decisions related to those investigations, and even to fire those conducting investigations against him.  And, according to Mr. Barr’s letter, these powers are legal even if the underlying reasons the president used them were, themselves, corrupt.  In other words, in Mr. Barr’s view as expressed in the letter he sent to the White House, the Constitution allowed the president to fire Special Counsel Robert Mueller even if the only reason for Mr. Trump to take such an action was to save his own skin.

Fox News commentator Chris Wallace
Fox commentator Chris Wallace, commenting on remarks by Attorney-general William Barr, said, “I suspect that Democrats’ heads on Capitol Hill were exploding and they’re going to come down very sharply about the way that Bill Barr today laid this out because there’s no question this is going to be — this is the first look, in a sense, that everybody has gotten today, at the Mueller report, and this was as good a case as the president and the president’s lawyers could make that there is nothing to see here, let’s move on.”

Restricting the president’s powers in such a way as to prevent him from firing a special counsel looking into acts of illegality committed by the chief executive himself, according to Mr. Barr, “impermissibly burdens the exercise of core discretionary powers within the executive branch.”  Or, in plain language, taking away the president’s discretionary power to fire anyone he pleased in the executive branch at will would place an unacceptable burden on him that could hamper his ability to do his job as he sees fit, which could, in turn, endanger the security of the United States.

Barr’s Impact on Justice

Whether Mr. Barr’s interpretation of the law and the constitutional powers of the president is correct or not likely will be decided in the courts some day.  But what is clear now is the rules written to empower special prosecutors, like Robert Mueller, failed to anticipate the impact that partisan attorneys-general like Mr. Barr could have on American justice.

“The special counsel regulations were written to deal with the central problem our Constitution creates, which is the president and his attorney-general can control prosecution entirely under the law,” said Neal Katyal, former U.S. Solicitor General, Georgetown law professor, and one of the authors of the regulations governing special counsels.  “So, if the attorney-general is corrupt, there isn’t a way to stop him from doing the president’s bidding. All you can do is shed sunlight into that process.”

Robert Mueller
Special counsel Robert Mueller completed his investigation into possible collusion between the Trump campaign and agents of the Russian government. His report concluded the Russians attempted to influence the 2016 presidential election, but did not conclude Pres. Trump actively colluded with their efforts.

And that is the problem we clearly saw with Mr. Barr’s conduct throughout his tenure so far as U.S. Attorney-general.  Instead of acting as an impartial advocate for the universal concept of justice, instead of insuring that the investigation into Mr. Trump’s campaign, its alleged interactions with agents of a hostile foreign power, and the president’s own documented attempts to obstruct Mr. Mueller’s efforts, Attorney-General Barr, instead, chose to conduct himself as would an attorney defending his client, rather than as the representative of the American people who paid for the investigation and expected the Department of Justice to impartially report on the findings.

Instead of getting a dispassionate recitation of Mr. Mueller’s findings and a referral to Congress for further actions, should they, the elected representatives of the people, deem it necessary to take further steps in the matter, what the American people got from their attorney-general was a list of the emotions experienced by Mr. Trump that led him to commit, according to Mr. Mueller, at least 10 attempts of obstruction of justice.  Said Mr. Barr:

In assessing the President’s actions discussed in the report, it is important to bear in mind the context. President Trump faced an unprecedented situation. As he entered into office, and sought to perform his responsibilities as President, federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates. At the same time, there was relentless speculation in the news media about the President’s personal culpability. Yet, as he said from the beginning, there was in fact no collusion. And as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.

In other words, according to Mr. Barr, the president’s alleged criminal behavior was legal because he was paranoid about the fairness of the press and angered by opposition to his presidency by the other party, concerns shared by every president in American history, including those before him who never attempted to obstruct justice.

What Mr. Katyal and the others who wrote the rules governing special counsels that define the ways the Justice Department must interact with them didn’t anticipate was the attorney-general would fail to carry out impartially the basic duties of his job, that he would choose to be an advocate for the president instead of an impartial advocate for justice responsible only to the American people.

That is, of course, what Mr. Barr did.  He made that very clear when he chose to interpret the words of Mr. Mueller written in the report – “The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.” – as an exoneration of President Trump on the charge he obstructed justice.  That, clearly, is not what Mr. Mueller said, as anyone reading the report would conclude.

Mr. Barr also failed to disclose in clear terms to the American people exactly why Mr. Mueller chose not to make “a traditional prosecutorial judgment,” which he explained was entirely because of the Office of Legal Council internal memo of 1973, written during the peak of the Watergate cover-up scandal, that took the position that a seated president could not be charged with a crime while in office.  The special counsel did not, as the president’s apologists falsely stated, clear Mr. Trump from the crime of obstruction and, in fact, in footnote 1091, even went so far as to make an argument that the president could be held legally accountable for his actions after he is no longer in office.  The Mueller report:

A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment. See U.S. CONST. ART. l, § 3, cl. 7. Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to relying only on impeachment, rather than making criminal law applicable to a former President, as OLC has recognized. A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. at 255 (“Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.”).

Time To Hire Our Own Attorney-General

So, if we can no longer trust the head prosecutor in the United States to serve the people, instead of the person who appointed him to the job, is it time to start electing the attorney-general directly, ourselves?  Former federal prosecutor at the Department of Justice and retired federal judge Bruce J. Einhorn believes so.  The Pepperdine Law School professor, writing for The Hill, believes the time is right to liberate the attorney-general from the political bonds tying him to the president who put his name up for appointment.

The attorney general is head of the U.S. Department of Justice. He is not secretary of the “department of law.” He should be the nation’s shield against those in power who use their positions for corrupt purposes, who try to skirt the rule of law and who attempt to exceed the constitutional limitations of their offices. The attorney general should defend the nonpartisanship and professionalism of Justice Department lawyers as they speak truth to power.

Most of the states already elect their attorneys-general, forty-three to be exact.  Maine‘s AG is appointed by the legislature and, in Tennessee, the state supreme court chooses the Volunteer State‘s chief law enforcement officer.  Only five states, Alaska, Hawaii, New Jersey, New Hampshire and Wyoming, allow their governors to appoint the person who might, some day, investigate and prosecute their chief executive.

Map of the United States
Forty-three states hold elections to select their attorney-general. Only five, Wyoming, New Hampshire, New Jersey, Alaska and Hawaii allow their governors to appoint the AG. Tennessee’s supreme court chooses theirs and Maine’s legislature votes theirs in.

So, if this works well for the states, why not for the country, as a whole?  “Most of our states have independent, elected attorneys general who have done a good job of ensuring an independent approach to law enforcement. Supreme Court Justice Louis Brandeis, referred to the states as ‘laboratories of democracy.’ Where the states have experimented so successfully, the federal government should follow suit,” said Judge Einhorn. “It is high time that we make the attorney general the ‘people’s lawyer.’ Only then will we truly ensure ‘liberty and justice for all.’”

He has a point.  Too often in American history the nation’s top law enforcement officer was seen by the electorate as being torn between his duties to the people and the law and his loyalty to the president who appointed him.  President Nixon‘s attorney-general Elliot Richardson, ordered by the president to fire Watergate special prosecutor Archibald Cox, resigned his post in protest.  But, his replacement, future Supreme Court nominee, Robert Bork, responded affirmatively and did his boss’ bidding.

President John Kennedy understandably took a lot of criticism when he nominated his brother Robert to be his attorney-general, prompting critics to charge him with nepotism largely because the junior Kennedy lacked legal experience, rather than over concerns he would cover-up future White House misdeeds.

Eric Holder, attorney-general under President Obama, was criticized during his nomination for showing too little independence from President Clinton when he was deputy attorney-general.  Alberto Gonzales, the second of three AG’s under President George W. Bush, resigned, largely, due to accusations he lacked independence from the Republican president.  Even President Eisenhower‘s first AG, Herbert Brownell, the man who championed civil rights for blacks and who supported the appointment of liberal judges in the South, as well as the appointment of U.S. Supreme Court Justice Earl Warren, a progressive, as chief justice, was met with heavy criticism from those who believed his past as Republican National Committee Chairman would make him beholden to the president.

The solution to this problem isn’t to complain about how political attorneys-general have become, but to eliminate the political pressure on those holding the post by making them elected officials accountable to the people, not the president or their party.

And while there might be cases where an AG from one party tries to use his office to bring spurious charges against a president from the other party, both the voters and the courts could put an end to that misbehavior.  The incentive for the AG would be to protect his reputation and political future by doing the job right in the eyes of the people who elected him, rather than responding to the audience of one it seems the man currently holding the post needs to please today.

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