The Attorney General is often said to be the Cabinet officer whose responsibilities require a special degree of independence from presidential control. This is not new ground. Even President Washington envisioned the chief legal officer of the executive branch as a “skilled neutral expositor of the law.” Frederick A.O Schwarz and Aziz Z. Huq, Unchecked and Unbalanced: Presidential Power in a Time of Terror 191 (2007). In more recent times, partly as a result of Bobby Kennedy’s service as Attorney General in his brother’s Administration, and then of the troubles that followed from Richard Nixon’s choice for that post of his law partner and campaign chair John Mitchell, the pressure on the AG to establish an acceptable level of independence within an Administration has intensified.

There remain practical and theoretical limits to that neutrality. The AG is answerable to the President and is required like other Cabinet officers to pay attention to presidential policy priorities. There are, however, careful judgments to be made: norms that survive in one form or another, from Administration to Administration, that help keep the federal law enforcement apparatus from being wholly annexed to the political purposes of the West Wing.

Whether these norms have been properly tended to and enforced is never going to be the subject of agreement. Each party out of power has reasons–and some times defensible reasons– to question an Administration’s adherence to norms. This is healthy: it is one way that norms survive, because with whatever degree of sincerity, and whether on the offensive or in self-defense, everyone claims that they care about them. Norms depend vitally on the simple and repeated declaration that they exist and will be upheld. So it helps to reinforce, and enforce, the norms when Democrats complain about the deficient independence of a Republican AG, and Republicans take up the charge at the time of a Democratic Administration, and each stoutly stands behind the necessity of an appropriate measure of DOJ independence.

This all requires alertness to anything that could be new in an Administration’s articulation of the role of its AG. And what White House senior adviser Steve Bannon has had to say about the role of Senator Jeff Sessions appears to be new.

Mr. Bannon was responding to a question posed by the Washington Post and inspired, apparently, by the AG nominee’s part in fashioning President Trump’s policy agenda. Mr. Bannon is reported to have described Senator Sessions as “the clearinghouse for policy and philosophy” in the Administration. He does not, it seems, mean only what the Senator did to develop and promote the Trump policy agenda during the campaign. Bannon refers specifically to Session as the “clearinghouse…for policy and philosophy to undergird the implementation of that agenda.” He goes on to connect this function to the “birth of a new political order.”

This is a striking job description for an Attorney General. It would put Senator Sessions in the middle of the politics and policy of the Administration–and of all kinds, not only matters that might bear on his duties as AG, such as the President’s policy toward legalized marijuana or criminal sentencing. Perhaps there have been instances in the past when the AG’s role has been so defined, but they do not spring to mind. And the reason is that an AG whose portfolio is that comprehensive and, at bottom, political in nature–who is described as one of the leading advisers in the birthing of “a new political order”–cannot reasonably be expected to prize, much less defend, “independence” on even a limited construction of the norm. It is not easy to see what would be left of the distance between the Department and the White House.

At his confirmation hearing, Mr. Sessions insisted that he would uphold the laws, even ones he strongly disagreed with, and he would not rubber-stamp the President’s wishes if the action to be taken were illegal. This was widely understood to be an affirmation of independence. It more represented the minimum he might say–that he would have to say. Insert a “not” into the appropriate places, and it becomes evident that there was no other answer he could have given, as reassuring as it might be that he gave that answer and not another.

The question now is whether the Senator will confirm the role as AG in this Administration that one of the President’s closest advisers, on the record, has claimed for him. What would he say about what that role would mean for his understanding and enforcement of the norm of Departmental independence? And with what offer of transparency to allow for congressional and public monitoring of the Department’s actions in helping to bring about this new political order?

Leave a Reply