Six former Attorneys General formed a panel at the ABA Annual Meeting in Chicago\u00a0to share perspectives on what must be one of the most remarkable legal jobs in the world.<\/p>\n
William Barr, Benjamin Civiletti, Richard Thornborough, Edwin Meese, John Ashcroft and\u00a0Michael Mukasey\u00a0spoke 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.\u00a0 They spoke\u00a0in surprising detail\u00a0about 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.\u00a0<\/p>\n
The Attorney General contributes to the creation of policy but, once policy is decided,\u00a0is under a responsibility then to enforce and effectuate it.\u00a0 As one participant observed, “The President may not be above the law but he is certainly above you.”<\/p>\n
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.”\u00a0 The Attorney General should try to\u00a0assure that\u00a0the decision-makers have the Attorney General’s best understanding of what the law is,\u00a0but try to ensure that the decision made is vested with the greatest possible legal authority.\u00a0 “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.”\u00a0 The result is not unlike the answer\u00a0counsel often render their private clients: “Our best view is X.\u00a0 Could I argue Y? Yes.”\u00a0 Whether the client’s ultimate decision is X or Y, the Attorney General’s job is to support it — \u00a0or if unable to do so then, as Elliot Richardson famously did in the Saturday Night Massacre, “vote with your feet.”<\/p>\n
A discussion of the propriety of investigating the Department of Justice lawyers’ advice concerning torture was particularly provocative.\u00a0 One participant hypothesized a government operative whose unlawful coercive tactics successfully thwarted a nuclear attack on an American city.\u00a0 If these facts were revealed in an investigation, would the public condemn\u00a0the operative\u00a0or give her a tickertape parade down Broadway?\u00a0 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?\u00a0 The former is the usual role of the Department of Justice and the latter is ordinarily assumed by Congress.\u00a0 How could such an investigation be launched and conducted without its\u00a0appearing politically motivated, and is it\u00a0proper for the Department of Justice to be thus perceived?\u00a0 Should attorneys be prosecuted for taking and justifying legal positions, even if those positions\u00a0were later changed or even reversed?\u00a0 Should private sector attorneys be subject to prosecution on the same basis? \u00a0<\/p>\n
There was overall agreement that conduct taken by government operatives in reliance on the legal advice of the Department of Justice\u00a0should not be prosecuted.\u00a0 People whose conduct was inconsistent with the law as interpreted by the Department (such as the wrongdoers\u00a0at Abu Ghraib) are properly investigated and prosecuted; those who respected the guidelines should not be, even if the substance of those guidelines\u00a0is later challenged.<\/p>\n
The group also discussed the legal constraints on the constitutional powers of the president in the name of national security.\u00a0\u00a0One panelist\u00a0held up two pieces of paper and said that, in peacetime, the separation of the powers of the executive and legislative branches\u00a0is more clear.\u00a0 Then he crossed the corners of the paper and said that the Constitution grants both the legislature and the executive\u00a0certain national security\u00a0powers that in many cases overlap.\u00a0 The courts, he said, have historically deferred to the president in most cases of overlap, out of some notion of necessity (such as\u00a0Lincoln’s defense of his\u00a0suspension of habeus<\/em> while Congress was not in session).\u00a0 With recent opinions,\u00a0however, the courts have asserted their own powers to review executive and legislative actions, adding a third piece of paper overlapping\u00a0the other two.\u00a0 In any event, the group recognized the special considerations that enter when “exigent circumstances of national security” come into play.<\/p>\n Yet further complicating the issue is the public recognition and support of\u00a0a war.\u00a0 One participant recalled that suring World War II —\u00a0the “good war” —\u00a0the 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.\u00a0 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\u00a0the president’s\u00a0power to engage in such conduct as part of his\u00a0responsibilities to ensure\u00a0“national security.”\u00a0 Thus, all of the branches are subject to, and of necessity responsive to, the political tenor of the times.<\/p>\n The recent “scandal” of politically-motivated replacements of US Attorneys was\u00a0also interesting.\u00a0 It was noted at the outset\u00a0that US Attorneys are appointed by the president, not by the Attorney General.\u00a0 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\u00a0to resolve this disagreement.”\u00a0 The group generally agreed that it is occasionally necessary or advisable to replace a US Attorney, but that decision\u00a0is best\u00a0determined 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.\u00a0 Political considerations, it was generally agreed, are properly\u00a0part of the\u00a0appointment process — indeed, Senators assert that they should be involved in the appointment of US Attorneys in their districts.\u00a0 And every administration makes appointments early in their terms.\u00a0 The trouble comes when middle-level political operatives within the White House become involved,\u00a0and act in an uninformed or inappropriate manner.\u00a0 And it gets immeasurably worse when the\u00a0replacement is defended on the ground that the person replaced was professionally incompetent.<\/p>\n The discussion was a unique opportunity to get a taste of the complex legal, political\u00a0and moral environment in which the Attorney General’s responsibilities are executed.<\/p>\n","protected":false},"excerpt":{"rendered":" A remarkable panel at the recent ABA Annual Meeting provided insight into the challenges faced by America’s Chief Legal 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