Time for an Independent Attorney General

Almost every U.S. state has an independent attorney general. Forty-eight of our state governors cannot fire their AG at will, so they can’t avoid justice through control of state prosecutors. American Presidents, however, however, can fire the U.S. Attorney General, for essentially any reason. Yet the White House generates far more potential corruption than any governor’s mansion, due to its greater power. In fact, thanks to the modern imperial presidency, the U.S. executive now overshadows the other two branches, disrupting the Founding Fathers’ plan for a balance of power. And the extreme partisanship of 21st Century politics boosts Presidents’ might even further. It renders them almost immune to impeachment and even to justice from the ballot box. That leaves law enforcement as a crucial check on executive corruption. But the federal prosecutors’ hands are tied by the Presidents’ power to fire them. So the U.S. must learn from the wisdom of its own states.

This article proposes a constitutional amendment creating an independent Attorney General — and it offers the amendment’s text, ready for adoption. It takes no position on the conduct of Presidents Trump or Obama or any of their predecessors. Rather, it offers a non-partisan, traditional American solution.

The Founding Fathers and the Attorney General

Could Randolph have been free of the President, subject only to impeachment?
Edmund J. Randolph, first U.S. Attorney General

The Framers of the Constitution did not consciously grant the President authority to hire and fire the Attorney General. They apparently paid little attention to the question. The Constitution doesn’t mention the AG or other government lawyers. And the first drafts of the Judiciary Act of 1789, written by several of the Framers, said the Supreme Court would appoint the Attorney General. The act’s final draft, on the other hand, said nothing about who would hire or fire these lawyers.

The early Presidents just stepped into the void and made government attorneys part of their administrations. And in the early days of the republic, no one objected. But the Framers never saw the imperial presidency.

The Imperial Presidency

“The current presidency has the potential of becoming a law unto itself as the expediency and demands of modern government have … freed the President from the effective oversight of the other two branches.”* So wrote Chapel Hill law Professor William Marshall in 2006, in the Yale Law Journal. Professor Marshall was reacting to the “imperial presidency”: a name used since the 1960’s to address the explosion of executive power in modern America. By the mid-Twentieth Century, the American President was the most powerful person in the world — and wielded greater domestic might than the British kings and ministers who so troubled the Framers of the Constitution.

The Presidents who first took control of the Attorney General’s office, then, bear little resemblance to their modern successors. And today’s AGs can do little to curb the imperial presidency. In a 1935 opinion about presidential power, the U.S. Supreme Court said, “it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter’s will.”** That logic, of course, applies to the Attorney General, who serves at the pleasure of the President. As Professor Marshall put it, “[T]he President’s ability to control the Office of the Attorney General makes him effectively the only arbiter of the legality of his actions.”*

Yet since Professor Marshall wrote in 2006, the presidency has grown even more independent of the law.

Extreme Partisanship vs. the Ballot Box and Impeachment

Impeachment didn't work in 1868 either.
The partisan impeachment trial of President Andrew Johnson, 1868

Thanks to to the extreme partisanship of 21st Century politics, millions of voters now value a leader who opposes the other party more than they value justice. (And if you think that’s limited to the right, you’re not listening to enough voices from the left.) So today, a President can maintain political support despite damning evidence of self-dealing. In other words, with the nation divided into hostile camps, the voters can’t be counted on to punish corruption.

Modern partisanship also nullifies the Founding Fathers’ fallback anti-corruption tool: impeachment and removal by Congress. Impeachment of high officials has always involved political calculations. That’s nearly fatal in an extremely partisan environment, where impartiality will cost members of Congress their jobs. Plus, impeachment is a tool of last resort, practical only for the most serious and visible misconduct. Presidents can dodge federal justice in a hundred ways too small or subtle to trigger impeachment.

An Independent AG

In November of 2019, Israel’s Attorney General filed criminal corruption charges against the head of his own party, the Prime Minister. Attorney General Mandelblit has that freedom because the Prime Minister cannot fire him at will. But we don’t have to look halfway across the world to see AG independence imposing the law on the chief executive. In forty-eight U.S. states, the governor cannot freely remove the attorney general. In forth-three of those, the voters choose the AG, not the governor, while in two others, appointment is by the legislature or the supreme court.

Tennessee AG: subject to impeachment but not easy removal by the governor.
The Supreme Court of Tennessee, where the justices choose the AG — mirroring the Framers’ original plan for the U.S.

This state solution works far better than past anemic attempts to impose law enforcement on the U.S. President. Congress has occasionally created special and independent counsel. But these offices come and go at the whim of a partisan Congress, and they’re neither particularly impartial nor truly independent. If the U.S. had a permanent, independent Attorney General, the most powerful person in the world would be subject to the law.

The independent AG has been proposed before (including in Professor Marshall’s article). But extreme partisanship has not gripped America since before the rise of the imperial presidency. That combination demands action now. And today, the Internet offers a tool for building grass-roots support to amend the Constitution.

Amending the Constitution

Today’s Congress has created several “independent” agencies: bureaus like the National Labor Relations Board and the Federal Reserve, led by officers the President can’t fire at will. But few legal scholars would say Congress could give independence to the Attorney General — no matter what the Framers thought in 1789. The courts have only permitted independence for officers whose authority is not central to the President’s constitutional powers. Quasi-judicial and quasi-legislative authority can qualify, but core executive functions can’t — and that almost certainly includes law enforcement.

That means we need a constitutional amendment. And I think that’s possible, even today. Many of us value “our” guy or gal more than justice, but we all want justice in the abstract. And we all fear a corrupt President from the other party.

Below is a proposed a constitutional amendment creating an Attorney General the President cannot fire. Essentially, it creates a new branch of the federal government: the Justice Service — based on today’s Department of Justice (renamed to avoid confusion with presidential “departments”). Much of the amendment’s language comes from Article II of the U.S. Constitution. Other terms and ideas come from the constitutions of Pennsylvania, California, and especially Louisiana, as well as the Judiciary Act of 1789. (The amendment also includes modern uses of “shall,” “will,” “he,” and “she.”)

Just as forty-five U.S. states put the choice of attorney general outside the governor’s hands, this amendment puts it outside the President’s hands. The Vice President nominates the Attorney General — and the Senate confirms, but only on a two-thirds vote, to ensure appointment of a moderate. The Vice President offers an ideal choice since he or she belongs to the team — the President’s ticket — chosen by the voters to appoint federal officers. But he or she is not the President and can’t be fired by the President. So if the AG’s office becomes vacant during a presidential investigation or prosecution, the President can’t end the process by choosing a friendly Attorney General — or by refusing to nominate, leaving a friendly acting AG in office. The Vice President is generally the President’s ally, of course, but between his or her separate incentives and the AG’s own freedom to act, the amendment should ensure independence. (The Speaker of the House offers another option as nominator, but the voters don’t directly choose the Speaker. Plus, the Vice President needs something to do.)

The amendment also confirms that the Attorney General and Justice Service can prosecute a sitting President and that the President can’t pardon him- or herself. The AG would serve for six years and could not serve again for six years after that, so he or she would never rely on the current executive branch for reappointment. Finally, both the AG and the President would enforce the laws, paralleling most state constitutions — but only the AG could represent the U.S. in court.

Your comments, suggestions, and edits are very welcome.


The Independent Attorney General

Amendment to the United States Constitution

SECTION 1

The Attorney General of the United States of America will be the chief legal officer of the United States. He or she will have the authority to enforce the laws of the United States and the sole authority to represent the United States in any civil or criminal proceeding in any court throughout the world; provided the foregoing does not restrict any existing right of the branches of the United States government to represent themselves in court against each other. In addition, the Attorney General shall give his or her opinion on questions of law when requested by the President of the United States, and he or she shall assist the House of Representatives, when requested by such house or its Speaker, with investigations related to impeachment.

The Attorney General will perform his or her duties through a Justice Service of the United States of America, constituted pursuant to law. He or she shall nominate, and by and with the advice and consent of the Senate, shall appoint officers of the Justice Service; but the Congress may by law vest the appointment of such inferior officers as it thinks proper in the Attorney General alone. The Attorney General will have authority to fill up all vacancies within the Justice Service that may happen during the recess of the Senate, by granting commissions which will expire at the end of their next session, as well as authority to remove any officer of the Justice Service.

SECTION 2

The Attorney General will hold office during a term of six years, subject to Section 4 of this Article.

The Vice President of the United States shall nominate the Attorney General, who will take office upon confirmation by a two thirds vote of the Senate, with the President pro tempore of the Senate presiding when the Senate sits for such purpose. No person will be eligible to the office of Attorney General who has, during the past six years, served as Attorney General for any period or as Acting Attorney General for more than ninety days.

In addition to impeachment and removal, the Attorney General may be removed or suspended from office by a two thirds vote of each of the houses of Congress, solely for inability to discharge the powers and duties of said office due to illness, injury, or infirmity.

In case the office of Attorney General becomes vacant, the same will devolve on the next ranking officer of the Justice Service, as Acting Attorney General, and in case of further vacancy, such office will devolve on the other officers of the Justice Service in order of rank. The Acting Attorney General will continue in office until nomination and confirmation of a replacement Attorney General, who will serve for the remainder of the original term.

The Attorney General will, at stated times, receive for his or her services a compensation, which shall neither be increased nor diminished during the period for which he or she has been appointed, and he or she shall not receive within that period any other emolument from the United States, or any of them.

SECTION 3

This Article does not withdraw from the President of the United States any authority to enforce the laws, except to the extent that such enforcement involves prosecution of crimes in court or other representation of the United States in court, or Congress by law vests that authority solely in the Attorney General. The Attorney General may delegate authority to represent the United States in court to the President and the civil officers under the President’s authority, provided the Attorney General may withdraw such delegation at any time.

The Attorney General and the Justice Service will not be subject to direction by the President or Vice President, except as specifically set forth in the first paragraph of Section 1 of this Article. The President and Vice President will have no authority to remove from office the Attorney General or any other officer of the Justice Service.

The Attorney General’s authority will include investigation and prosecution of the President and any other officer of the United States, both during and after their terms of office. The President has no power to pardon himself or herself.

SECTION 4

Upon ratification of this Article, the initial term of the Attorney General will begin. Such term will end, and the first six year term will begin, at noon on the first day of March of the latter to occur thereafter of the first year or the third year designated by law for the start of Presidents’ terms.

Upon ratification of this Article: the Attorney General of the United States and the other officers of the United States Department of Justice, both as constituted under then-applicable law, will become the Acting Attorney General and acting officers of the Justice Service; the Department of Justice will become the Justice Service, and the Justice Service will include all bureaus, services, administrations, agencies, trustees, and other divisions of the Department of Justice; and laws governing the Department of Justice will govern the Justice Service, provided the authority of the President over the Department of Justice will become the authority of the Attorney General. The preceding sentence does not restrict the authority of Congress to legislate regarding the Justice Service or the Attorney General.


* Marshall, Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 Yale L.J. (2006), pp. 2478-9. Available at: https://digitalcommons.law.yale.edu/ylj/vol115/iss9/9.

** Humphrey’s Executor v. United States, 295 U.S. 602, 629 (1935).

Artwork:

  • Edmund Randolf, by Flavius Fisher (1832-1905)
  • The Senate as a Court of Impeachment for the Trial of President Andrew Johnson, Illustration in Harper’s Weekly, April 11, 1868
  • Tennessee Supreme Court building in Nashville, Tennessee, by Thomas R Machnitzki, provided under the Creative Commons Attribution 3.0 Unported (CC BY 3.0) license

© 2020 by David W. Tollen

6 thoughts on “Time for an Independent Attorney General

  1. The esteemed David Simpson says this is compelling so I am compelled. But it seems to me that an independent AG would face the same problems Congress faces: How to get information from the President? How could the amendment address that problem, too?

    We want our President to be able to negotiate with enemies. That means the President can keep things secret from Congress because you couldn’t possibly negotiate effectively if you need to keep Congress completely informed. What if our new independent AG suspects the President is violating the emoluments clause while negotiating? We’d have the same exact problem we have now. In short, the AG wouldn’t be more effective and enabled than our Congress is now.

    If we’re gonna clean up the grey areas on the constitution how ‘bout some language that defines who and what can be subpoenaed and when? Assuming the President won’t be required to testify against him/herself, can the VP be forced to testify against the President? What language could we give to the AG that would stand up to a President that says simply “you don’t have the right to object that I might benefit politically or financially, you cannot interfere with my need to do what I think is in the best interest of the USA”?

    1. Good thoughts, John. But I intentionally did not address executive privilege in this amendment. It’s a separate topic and much more controversial, I expect. So you’re right: the AG would face similar challenges to getting information from an uncooperative President. But there’s a difference. With control over federal prosecution, the AG could file criminal charges against the President and his/her staff for failing to turn over information where required by law. That’s a power Congress does not have, and it’s huge. Further, even if the President ultimately does not fully cooperate, active prosecution greatly limits his or her power.

  2. Ah. Yes. If Congress is powerless to get information required by law we need to fix that.

    Please craft some language to determine what information is not protected by privilege. That language can’t be more tricky to develop than all the IP policies you’ve pioneered.

    1. Sorry, John! You’re right: that’s no more complex than IP/IT contracts and policies. But I can only handle one campaign at a time!

  3. well written! I found this page when searching for a good article to provide others who continue to assert that the AG is “independent” of the presidency, which, for quite awhile, we so frequently heard from all the talking heads on TV. Thanks for your work on this matter, albeit, I still would not support a constitutional convention.

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