Why we should make attorney general an elective office
Like Watergate, the unfolding U.S. attorneys scandal proves that it's dangerous for the nation's chief law enforcement officer to be an appointed crony of the president.
By Garrett Epps
Read more: George W. Bush, Bill Clinton, Ronald Reagan, Opinion, Attorney General, Dick Cheney, Alberto Gonzales, U.S. Attorneys
March 9, 2007 | The evolving scandal over the Bush administration's purge of U.S. attorneys around the country has its roots in the most mundane of political sins -- hubris, cronyism and corruption. But it has historical roots as well; to me, it brings to mind a curious moment during the debates in Philadelphia that framed the Constitution. On June 1, 1787, James Wilson of Pennsylvania formally moved that the executive power be placed in a single individual.
The room fell silent, and the silence lasted long enough that the chairman finally asked whether the group wanted to move on to a vote. Only then did Benjamin Franklin speak up and urge his colleagues to discuss the question, and the Constitutional Convention began a long-running debate over the contours of the office that would become the presidency.
Madison's selective and bare-boned "Notes" of the debates provide no explanation for the dead air that greeted the single-executive motion. But it doesn't require a vivid historical imagination to put that awkward pause down to the fact that everyone in the room knew that George Washington, the nation's greatest hero and the presiding officer of the convention, would certainly be the first chief executive under any new system.
With Washington the presumptive beneficiary, nobody would have relished the role of suggesting that the entire executive power should not be lodged in one person. But there were also good reasons to question the single-executive plan. It smacked of the British crown. And so throughout the rest of the convention, the delegates struggled to come up with a plan to dilute the authority the president would hold.
The delegates toyed with surrounding the president with a Council of State, such as some of the states had, to approve major measures. That failed -- to the disgust of Virginia's George Mason, who declined to endorse the Constitution in part because the president would be "generally directed by minions and favorites." In the end, the convention voted to give "advice and consent" power to the Senate, in the hope the Senate would share in, and temper, the president's decision making.
That hope proved illusory. For more than 200 years, the executive branch of our government has been expanding its reach with little interruption. Today, the president commands a vast economic, political, legal, military and national-security apparatus, with no check on his decisions except the often feckless oversight of Congress.
What does all this have to do with the U.S. attorneys scandal? We don't know all the facts yet, but consider how the scandal apparently came to pass. Officials in the White House managed to sneak into the Patriot Act a provision allowing the president to appoint interim U.S. attorneys without congressional confirmation. Republican partisans on the Hill and elsewhere then apparently began to scour the country for those prosecutors whom they deemed insufficiently zealous in criminalizing the Democratic opposition. Soon, the attorney general of the United States -- George Bush's crony -- began to remove these independent figures and replace them with more compliant prosecutors. The result looks a lot like a systematic attempt to corrupt the federal justice system for short-term political gain.
The purge was possible because, under our Constitution, the attorney general is a presidential appointee. The Senate must confirm an attorney general, of course -- but the confirmation of Alberto Gonzales demonstrates that the Senate's use of its "advice and consent" power is often derisory. It has become conventional wisdom that a president has the right to install "his choice" in a position that not only sets legal policy for the United States but also heads the massive federal law-enforcement apparatus.
That's a lot of power to trust to someone whose loyalty is to another elected official. And the history of the past half-century has shown the perils of a politically appointed attorney general. Two of Nixon's attorneys general were convicted of Watergate-related crimes. Edwin Meese, Reagan's attorney general, was assiduous in seeking to impose political conformity on the federal judiciary. Clinton's early Justice Department was compromised by the presence of Webb Hubbell, crony extraordinaire. And Bush's appointees throughout the Department of Justice have been eager to further any hare-brained scheme hatched by the president or by Vice President Cheney.
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