United States

Insight Into Attorney General's Job

Six former Attorneys General formed a panel at the ABA Annual Meeting in Chicago to share perspectives on what must be one of the most remarkable legal jobs in the world.

William Barr, Benjamin Civiletti, Richard Thornborough, Edwin Meese, John Ashcroft and Michael Mukasey spoke of the peculiar posture of being, in the first instance, the head of the federal government’s prosecutorial and enforcement capability, and simultaneiously a member of the policy-making team of the executive branch.  They spoke in surprising detail about the relationship between the office of White House Counsel and the Department of Justice, noting that tensions ordinarily don’t arise as long as the White House counsel sticks to White House issues, and does not interfere with such core Justice responsibilities as investigations and prosecutions. 

The Attorney General contributes to the creation of policy but, once policy is decided, is under a responsibility then to enforce and effectuate it.  As one participant observed, “The President may not be above the law but he is certainly above you.”

Asked whether it is the Attorney General’s job to advise on what the law is, or to “put the best legal face on” policy decisions that are ultimately made, one panelist replied “Yes.”  The Attorney General should try to assure that the decision-makers have the Attorney General’s best understanding of what the law is, but try to ensure that the decision made is vested with the greatest possible legal authority.  “It is the business of lawyers to disagree,” said one panelist, “and in public policy debates one party will of necessity be advocating the less politically viable position.”  The result is not unlike the answer counsel often render their private clients: “Our best view is X.  Could I argue Y? Yes.”  Whether the client’s ultimate decision is X or Y, the Attorney General’s job is to support it —  or if unable to do so then, as Elliot Richardson famously did in the Saturday Night Massacre, “vote with your feet.”

A discussion of the propriety of investigating the Department of Justice lawyers’ advice concerning torture was particularly provocative.  One participant hypothesized a government operative whose unlawful coercive tactics successfully thwarted a nuclear attack on an American city.  If these facts were revealed in an investigation, would the public condemn the operative or give her a tickertape parade down Broadway?  And why would such an investigation be sought in the firt place — what would the objective be: to discover evidence that would lead to a prosecution, or to assess the effectiveness of intelligence-gathering operations?  The former is the usual role of the Department of Justice and the latter is ordinarily assumed by Congress.  How could such an investigation be launched and conducted without its appearing politically motivated, and is it proper for the Department of Justice to be thus perceived?  Should attorneys be prosecuted for taking and justifying legal positions, even if those positions were later changed or even reversed?  Should private sector attorneys be subject to prosecution on the same basis?  

There was overall agreement that conduct taken by government operatives in reliance on the legal advice of the Department of Justice should not be prosecuted.  People whose conduct was inconsistent with the law as interpreted by the Department (such as the wrongdoers at Abu Ghraib) are properly investigated and prosecuted; those who respected the guidelines should not be, even if the substance of those guidelines is later challenged.

The group also discussed the legal constraints on the constitutional powers of the president in the name of national security.  One panelist held up two pieces of paper and said that, in peacetime, the separation of the powers of the executive and legislative branches is more clear.  Then he crossed the corners of the paper and said that the Constitution grants both the legislature and the executive certain national security powers that in many cases overlap.  The courts, he said, have historically deferred to the president in most cases of overlap, out of some notion of necessity (such as Lincoln’s defense of his suspension of habeus while Congress was not in session).  With recent opinions, however, the courts have asserted their own powers to review executive and legislative actions, adding a third piece of paper overlapping the other two.  In any event, the group recognized the special considerations that enter when “exigent circumstances of national security” come into play.

Yet further complicating the issue is the public recognition and support of a war.  One participant recalled that suring World War II — the “good war” — the public had no qualm about the confinement of citizens, the assumption by the president of extraordinary powers, and other activities that, during a less popular conflict such as Viet Nam or Iraq, have been subject to scrutiny and judicial condemnation.  The anecdote was related of Franklin Roosevelt noting, with respect to a Supreme Court ruling requiring a warrant for wiretapping, that the ruling did not pertain to the president’s power to engage in such conduct as part of his responsibilities to ensure “national security.”  Thus, all of the branches are subject to, and of necessity responsive to, the political tenor of the times.

The recent “scandal” of politically-motivated replacements of US Attorneys was also interesting.  It was noted at the outset that US Attorneys are appointed by the president, not by the Attorney General.  The story was told of Elliott Richardson, when US Attorney for Massachusetts, arguing with Attorney General Robert Kennedy and finally saying to him, “General Kennedy, you are a presidential appointee and I am a presidential appointee — let’s ask the president to resolve this disagreement.”  The group generally agreed that it is occasionally necessary or advisable to replace a US Attorney, but that decision is best determined and executed at the highest level, and in a discrete manner, so as to avoid meritless determinations and prevent needless embarassment or undeserved reputational injury.  Political considerations, it was generally agreed, are properly part of the appointment process — indeed, Senators assert that they should be involved in the appointment of US Attorneys in their districts.  And every administration makes appointments early in their terms.  The trouble comes when middle-level political operatives within the White House become involved, and act in an uninformed or inappropriate manner.  And it gets immeasurably worse when the replacement is defended on the ground that the person replaced was professionally incompetent.

The discussion was a unique opportunity to get a taste of the complex legal, political and moral environment in which the Attorney General’s responsibilities are executed.

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