One of the central questions animating Jeff Sessions’ bid to be the attorney general of the United States was an abiding sense that—having worked closely with the Trump campaign and having given legal cover to some of Donald Trump’s most radical ideas—he could not be truly independent of the president. Before he was confirmed, Senate Democrats questioned Sessions repeatedly on whether he was capable of acting as an independent check on the executive branch, and Sessions repeated over and over again that he believed he could be.
In some sense this debate obscured a deeper truth: The attorney general has a dual and complicated role with respect to the president, and it’s always been a fraught proposition to demand perfect independence. In 2007, Dahlia Lithwick and Jack Goldsmith, responding to a very different attorney general and very different questions about independence, attempted to explain why the relationship isn’t a simple one and how cures nevertheless exist. The original is below.
The philosophical fight at the heart of the U.S. attorney imbroglio is a simple one: Everyone agrees that political appointments are political, but no one can decide how politicized the oversight of U.S. attorneys should be. Today’s Wall Street Journal, casting the current firings as business as usual, claims that “when it comes to ‘politicizing’ Justice, in short, the Bush White House is full of amateurs compared to the Clintons.” Former U.S. Attorney Harry Litman, by contrast, writes in today’s Los Angeles Times about the “best traditions of the Justice Department” that “historically have insulated federal prosecutors from the pressures of partisan politics.” And in Slate, Linc Caplan argues that the Bush administration has abandoned longstanding norms that constrained the president's authority over law-enforcement decisions.
Is the typical Justice Department a cog in a partisan machine, or a pristine and impartial servant of The Law? The clamor for Alberto Gonzales' resignation brings with it calls for a restructuring of DOJ, to purge it of unseemly political influence. The San Francisco Chronicle advocates legislation "to make sure U.S. attorneys can't be bounced for political reasons." In Salon, professor Garrett Epps goes further, arguing that the attorney general should be elected directly by the people and made independent of the president. And at TPM, Reed Hunt suggests 10-year terms for U.S. attorneys.
The nation has been down this road before. We have debated the merits of a de-politicized Justice Department. And we have resoundingly rejected it.
In 1974, following Watergate, Sen. Sam Ervin, D-N.C., introduced a bill that would have made the Justice Department an independent agency, akin to the Federal Reserve. Headed by an independent attorney general who was appointed for a six-year term and could be removed by the president only for neglect of duty, the reconfigured agency was seen as the cure for the stain left by Watergate. "I have become convinced of the utter necessity of removing the department, insofar that it is possible, from the play of partisan politics," Ervin explained.
Ervin's bill was vehemently opposed and ultimately shot down by the American Bar Association and a dream team of Democratic Party legal-establishment figures, including the liberal legend Lloyd Cutler, who later became White House counsel for both Jimmy Carter and Bill Clinton; Lyndon B. Johnson's attorney general, Nicholas Katzenbach; constitutional scholar and former DOJ official Herbert Wechsler; Watergate's first special prosecutor, Archibald Cox; Burke Marshall, head of the civil rights division at the Justice Department under Bobby Kennedy; and John F. Kennedy speechwriter, adviser, and historian Theodore Sorenson. Their concerns are as pressing today as they were 30 years ago, and, in their own voices, below, they highlight one truth: The Justice Department is a deeply political institution, and so it should remain. Here is why:
1. Politics is inevitable in the enforcement of law (although politics and partisanship are not the same thing).
Among a president's many prerogatives is the right to set a legal agenda that is, by definition, political. Democratic presidents may emphasize civil rights cases, and Republicans may favor immigration cases. Democrats go easy on the environment, and Republicans are tough on crime and voter fraud. There is no such thing as law enforcement that is distinct from such political promises and priorities. As Cox noted in the 1974 debates, in most cases "the treatment of the law and facts simply cannot be separated from ideas of economic, social, or political—in the highest sense of the word—philosophy." He added that "the president should have the power and responsibility for making these decisions when they are important enough for him to make them, or at least should have someone who is attuned to his philosophy of government making them."
Permitting policy priorities to inform law enforcement is not the same thing as permitting partisanship to do so. Sorenson tried to unpack the difference when he explained that the attorney general's "decisions on the prosecution of cases or the employment and promotion of attorneys should be based on law and merit, and not on considerations of party affiliation, political image-making, or White House approval or influence." But Sorensen was savvy enough to know that "politics is necessarily tied up with policy, with one's concept of the public interest and response to the public will. A president who campaigns on a 'law and order' issue, or a narcotics or civil rights or organized crime issue, must not be confronted with an attorney general of sharply differing views appointed for a fixed term by his predecessor."
In other words, if you concede that the president sets the agenda when it comes to criminal priorities, you cannot favor hampering him with a chief lawyer who does not share those priorities or who affirmatively works to advance different ones.
2. Presidential control over the enforcement of law promotes political accountability.
The president is elected, and that means voters can hold him responsible for the actions of the attorney general. As Sorenson explained during the 1974 debates: "Law enforcement faces enough problems today without responsibility for it at the federal level being divided between the president's men and the attorney general's. Do not fragment that responsibility—fix it, on the President, where it belongs. How else can a President be held responsible for his own Constitutional obligation to take care that the laws be faithfully executed?"
What we are seeing played out now in Congress and in the pages of our newspapers is a public process of sorting out responsibility and accountability. That's as it should be. Imagine how that process would be confounded if the attorney general answered to nobody.
3. Elections, press coverage, and congressional oversight are the least bad way to maximize accountability and control abuse.
The cliché goes like this: Sunlight is the best disinfectant. And as LBJ's attorney general, Katzenbach, put it in 1974, oversight by the media, Congress, and the voting public is a far less dramatic way to expose and deter DOJ wrongdoing than fiddling with the existing constitutional mechanism—whether that fiddling means decreased executive power of the Justice Department or increasing congressional oversight.
As Katzenbach said at the time, "There are, of course, opportunities in government for corrupt activities … broadly defined as political favoritism, using public moneys for partisan politics, rewarding political friends and punishing political enemies, through the use of office and the public purse. There is no way I know of to ensure that political power is totally immune from abuse. The best we can do, or hope to do, is to check the exercise of power, expose it to scrutiny, and to maintain a political ethic which makes the exercise of public power a public trust."
The political disinfectant process is often slow and messy. But it avoids the problem of law enforcement that is not responsive to the last election and not fixable by the next one.
4. Congress, too, poses a danger to the independence of U.S. attorneys.
A subtheme in the U.S. attorney controversy has been the potentially improper influence of members of Congress on law enforcement. Many in 1974 thought this was a greater danger than political influence from the White House and attorney general. U.S. attorneys made independent of the executive branch might, as Burke Marshall put it in 1974, "come to be primarily responsive to permanent power centers in Congress, particularly those who control appropriations—a process and chain of responsibility that does not seem to me on experience to have emphasized impartial, effective and responsible law enforcement." Or they might come under the thumb of home-state elected officials. As Sorenson said in the post-Watergate debates, "By diminishing if not eliminating the political patronage flavor of these offices, by making their occupants less politically beholden to their senators and local party officials and thereby more likely to stay for longer periods of service, the quality and consistency of law enforcement will be increased."
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The chorus of liberal opposition killed Ervin's bill. But the events of the past few weeks have made clear that we are still living with the tension that has always inhered in the Justice Department's twin role of carrying out the president's policies and upholding the rule of law. The problem is the same as it was in the 1970s: How can we be sure that a Justice Department necessarily embedded in politics does not use its power to promote partisan causes, as is alleged to have occurred here?
The best alternative to radically reconfiguring the Justice Department as a politics-free zone, or to directly electing the attorney general, is to have confidence in the system we see playing out now—that is, the system that already exists: Let's allow the Congress, the press, and the people to be the check here. Let them determine whether and when the line between politics as usual and improper politicization has been crossed. This is the genius of a system of checks and balances in the first place: If politics turns out to be the illness here, politics will also prove the cure.