As the 2024 election looms, each side dreads the prospect of the opposing candidate winning the White House. The fear makes sense because the President has power to break the law with little or no consequence. We can change that through a relatively simple constitutional amendment. We can create an independent U.S. Attorney General leading an independent Department of Justice. In other words, the federal government could operate like almost every U.S. state. Forty-eight state attorney generals enjoy independence from their governors. Forty-eight of our governors cannot fire their AG at will, so they can’t avoid justice through control of state prosecutors. Why should we expect less from the federal government, with its far greater scope for corruption?
This article proposes a constitutional amendment creating an independent Attorney General. And it offers a draft amendment, at the bottom. It takes no position on the conduct of Presidents Trump or Biden or Vice President Harris. Rather, it offers a non-partisan, traditional American solution.
The Founding Fathers and the Attorney General
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.”1Marshall, 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. 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 1960s to address the explosion of executive power in modern America.
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.”2Humphrey’s Executor v. United States, 295 U.S. 602, 629 (1935).
Extreme Partisanship vs. the Ballot Box and Impeachment
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.
Amending the Constitution
The Supreme Court of Tennessee, where the justices choose the AG — mirroring the Framers’ original plan for the U.S.
In forth-three U.S. states, the voters choose the AG, not the governor. In two others, appointment is by the legislature or the supreme court. And again, in forty-eight states, the governor can’t fire the attorney general. The federal government could work that way too.
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, based on today’s Department of Justice – renamed the Justice Service to avoid confusion with presidential “departments.” Much of the amendment’s language is copied 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.
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 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.
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.
The Independent Attorney General and Justice Service
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.
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
© 2024 by David W. Tollen
- 1Marshall, 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.
- 2Humphrey’s Executor v. United States, 295 U.S. 602, 629 (1935).
0 Comments