Archive for the 'Department of Justice' Category

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.