Does the President have the right to expect loyalty from his Attorney General?

September 23, 2017 by Alan Dershowitz
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Recent news reports describe the President chastising his Attorney General Jeff Sessions for disloyalty…writes Alan M. Dershowitz.

Alan Dershowitz

According to the New York Times, after learning that a special counsel had been appointed, President Trump accused Sessions of “disloyalty.” Critics insist that the President has the right to demand loyalty of every other member of his cabinet but not of the Attorney General. The Attorney General is different, these critics insist, because he is the chief law enforcement officer of the United States. The Atlantic’s David A. Graham, for example, criticized Trump’s demand for unconditional “loyalty” saying that, “for Trump, there is only one loyalty: to the president himself. When his aides and staffers make the mistake of following any other principle—rule of law, standard ethics policies, U.S. alliances—that might conflict with the principle of loyalty to Trump, the president becomes enraged.”

Well, the issue is far more complex, especially when it comes to the office of Attorney General. The complexity results from a fundamental mistake the framers of our Constitution and legal system made at the founding of our nation. Most democracies divide the role of our Attorney General into two distinct offices: the first, often called, the Minister of Justice, is an advisor to the Chief Executive. His or her role is to be loyal to the President or Prime Minister.  He serves at their will, and is part of the governing executive.  The president is absolutely entitled to demand complete loyalty from his Minister of Justice.

Then, there is a second office, sometimes called, Director of Public Prosecution, chief prosecutor, or attorney general. That office, and the person who holds it, is supposed to be completely independent of the executive.  Indeed it is supposed to serve as a check on the executive.  No chief executive is entitled to expect loyalty from the chief prosecutor especially if that prosecutor is investigating him or his colleagues.  The Chief Executive is entitled not to loyalty, but to independence, integrity and fairness.

We are one of the few western democracies that mistakenly merged these roles into one.  Our Attorney General is supposed to both advise the president politically, as Sessions has done with regard to immigration reform and other matters. But at the same time, the Attorney General is supposed to be the head law enforcement officer of the United States – the chief prosecutor.  This conflation of roles inevitably creates a schizophrenic Attorney General with conflicting loyalties and obligations.  It is because of this inherent schizophrenia that our country has had to suffer the appointment of special counsel, independent prosecutors and the like. I say, “suffer” because even the strongest advocates of these artificial positions concede that they operate outside of the usual prosecutorial role.  We wouldn’t need them if we adopted the English or the Israeli approach which totally separates the role of political advisor from the very different role of Chief Prosecutor.  So don’t blame Trump alone for demanding loyalty from his Attorney General.  Every president expects that.  John Kennedy appointed his brother; Ronald Reagan appointed his personal lawyer; Jimmy Carter appointed his close friend; and other presidents have appointed political loyalists precisely in order to be assured of complete loyalty.

The system should be changed. The Justice Department should be broken up into two completely separate agencies, with two separate heads: the Minister of Justice would be a loyal political advisor to the president and a member of his cabinet; and the Director of Public Prosecution would be completely independent, and not a member of the cabinet. This separation will not be easy to achieve.

But it may be possible, without a constitutional amendment, if Congress and the courts have the will to do it.

The Supreme Court has held that the appointment of an independent prosecutor does not violate the constitutional separation of powers or infringe on the executive authority of the president.

Under that controversial precedent, Congress may be empowered – though it is far from certain – to establish a permanent independent prosecutorial authority outside of the current Justice Department structure.  The president would almost certainly still have to make the appointment of the permanent prosecutor, but it could be for a term of years that transcends any presidential incumbency.  This was the idea behind the appointment and removal of the director of the FBI.  Obviously that did not prevent President Trump from firing Director Comey, but he did have to pay a heavy political price for that decision.  The same would be true if a president fired the permanent prosecutor in a situation where he was investigating the president or his associates.

Under our constitutional structure there is no perfect cure for the mistake made by our founders in merging the two incompatible goals of the current Attorney General: that of political advisor to the president; and that of independent chief prosecutor.  But we can perhaps improve the situation.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of, Trumped Up! How Criminalization of Political Differences Endangers Democracy, which is now available.

This was originally published by Gatestone Institute.

 

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