Almost every U.S. state has an independent attorney general. Forty-eight of our state governors cannot fire their AG at will, or the officers under him or her. So these governors can’t manipulate their states’ justice systems. American Presidents, however, however, can fire the U.S. Attorney General, for essentially any reason — and through the AG, they control the U.S. Department of Justice. So our Presidents can manipulate the justice system. They can halt or prevent prosecutions targeting their allies or themselves, and they can order baseless prosecution of their enemies. And our system of checks and balances no longer really protects us. That’s because the imperial presidency weakened the Constitution’s key restrictions on presidential power during the 20th Century, and today’s extreme partisanship has essentially finished them off. So if we hope to live free and safe from corrupt executive power, the U.S. must learn from the wisdom of its own states. It must free the U.S. Attorney General and federal justice from grip of the most powerful person in the world. This article proposes a constitutional amendment creating an independent Attorney General, who the President cannot fire, overseeing an independent Department of Justice. And it offers the amendment’s text, ready for adoption.
The amendment proposed below provides that it can’t go into effect before 2025, after the next presidential term. So it would have no impact on President Trump or any Democrat who replaces him in 2020. And this article 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: a tool to ensure that future Presidents cannot defy justice.
The Founding Fathers Did Not Give the AG to the President
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 Has Disrupted the Balance of Power
“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 1960s to address the explosion of executive power in modern America.
In simple terms, by the mid-Twentieth Century, the world the Framers knew was gone. Power in the Twentieth and Twenty-First Centuries requires information, and the President has vastly more than Congress or the courts. And modern events move faster than the Framers ever imagined, due to engine-powered travel and light-speed communications. So the branch capable of quick action, the presidency, vastly overpowers Congress and the courts, which can’t act without debates, votes, and official filings, not to mention information from the executive branch. In addition, international relations matter far more now than in the Framers’ time, when most trade was local. That further boosts the might of the presidency, which has authority over international affairs. Finally, today’s President has a far larger staff than the other two branches. The federal government is a giant like nothing the Framers ever expected.
Thanks the imperial presidency, by the middle of the 20th Century, the President wielded far greater domestic might than the British kings and ministers who so troubled the Framers of the Constitution. And on the international stage, the President is the most powerful person in the world.
The Presidents who first took control of the Attorney General’s office, then, bear little resemblance to those Professor Marshall described in 2006. Yet since Professor Marshall wrote, the presidency has grown even stronger and more independent of the law.
Extreme Partisanship Has Negated Impeachment and Justice from the Ballot Box
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’s Presidents can maintain political support despite damning evidence of self-dealing — or of misusing the justice process to attack opponents. 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 Framers’ 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.
The Dependent AG Can Do Nothing
In theory, the Attorney General and Department of Justice can curb the imperial presidency. In theory, they can investigate and charge presidential appointees who violate the law or even the President him- or herself — and they can protect the President’s enemies against unwarranted legal action. In reality, they cannot.
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. Facing a President buoyed by the power of partisan support and of the imperial presidency, even the most honest, dedicated Attorney General can do little more than get fired.
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.”*
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 had 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, the legislature or supreme court makes the appointment.
This state solution works far better than past anemic attempts to impose the law on the President. Congress and the DoJ have occasionally created special and independent counsel to investigate the President. But these offices have done very little to curb presidential abuses. Among other problems, these short-term counsel lack real independence, since a partisan Congress and an easily-fired Attorney General control their appointment, resources, and termination.
A permanent, independent Attorney General and Department of Justice would solve these problems. Under their management, the most powerful person in the world would be subject to the law, and the rest of us would live safer from abuse of power.
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.
Congress Can’t Do It
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 the Attorney General true independence — no matter what the Framers thought in 1789. The courts have permitted independence for officers with quasi-legislative and quasi-judicial authority and for “inferior officers” with limited jurisdiction. It’s unlikely that the Attorney General’s office and Department of Justice could qualify, with their truly executive functions and broad powers.
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. Plus, today the Internet offers a tool for building grass-roots support.
Amending the Constitution
Below is a proposed a constitutional amendment creating an Attorney General the President cannot fire. In a sense, it creates a new branch of the federal government, led by the AG: 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 below adopts the wisdom of the forty-five states that put choice of the attorney general outside the hands of the governor. But rather than relying on election or appointment by the legislature or highest court, like those states, the amendment sticks close to the federal government’s current system for appointment. Just as the President nominates most senior federal officers, the Vice President would nominate the Attorney General. So the President’s democratically-elected ticket would still control the nomination. At the same time, the Vice President has separate ambitions from the President, particularly where the President faces criminal prosecution — and he or she can’t be fired. So the Vice President has less incentive to manipulate the nomination in the President’s favor, particularly if the AG’s office falls vacant during a presidential investigation. Perhaps more important, confirmation of an AG would require a two-thirds vote in the Senate, instead of the usual majority. That should ensure that only a moderate gets the job: someone respected as fair and impartial.
The amendment bolsters Attorney General independence further by providing that the he or she serves for six years and can’t serve again for another six years after that. So the AG would never rely on the current executive branch for reappointment. And the amendment confirms that the Attorney General and Justice Service can prosecute a sitting President and that the President can’t pardon him- or herself. Finally, both the AG and the President would enforce the laws, but only the AG could represent the U.S. in court — as under most state constitutions.
Your suggestions and edits are very welcome.
The Independent Attorney General
Amendment to the United States Constitution
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.
The Attorney General will hold office during a term of six years, except to the extent that Section 4 of this Article provides for a shorter initial term for such office.
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. Authority to nominate the next Attorney General will devolve on the Speaker of the House of Representatives if the Vice President has not nominated a candidate twenty days after the start of a term of the office of Attorney General or, in case of a vacancy occurring more than sixty days before the start of a term of such office, sixty days after such vacancy. 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 house 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 confirmation of a new Attorney General. An Attorney General taking office as a replacement for a predecessor who did not finish his or her term will serve for the remainder of such 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.
This Article does not withdraw from the President of the United States any authority to enforce the laws, except to the extent that Congress by law vests that authority solely in the Attorney General or such enforcement involves prosecution of crimes in court or other representation of the United States in court. 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.
This Article will become effective upon the latter of its ratification and the next presidential term beginning after the first day of January of 2025. On this Article’s effective date, the initial term of the Attorney General will begin. Such initial term will continue for four years and then until noon of the 20th of March of the first to occur thereafter of the first or the third year designated by law for the start of presidential 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).
- 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