Who does the attorney general represent?
Friends:
Although I have not submitted writing or posted recently, I have been doing some work around the U.S. Attorneys General and their impact on our politics and democracy and I will post or publish pieces derived from that research, including on this site and on my new Substack (once it is up and running), that seem relevant to the current environment.
Among the first actions the newly appointed U.S. Attorney General, Pamela Bondi, has announced is the formation of a “Weaponization Working Group” to investigate the investigators—that is, those Department of Justice officials (and State officials as well, but that is a subject for another day) responsible for investigating and prosecuting Donald Trump and others in the various cases against them. As quaint as it may seem in the face of the brazen claims of executive power, the violation of legal and constitutional limitations on that power, and the attempted dismantling of the federal government under this President, not to mention what appears to be the trading of legitimate criminal prosecutions by the Department of Justice for political goals, this seems to be a good time to remind Ms. Bondi just who her client is. The Attorney General’s client is the people of the United States. That is, us. Not the President who appoints them and has the power to fire them, but the United States. In the words of Attorney General Ramsey Clark, also the son of an Attorney General (and Supreme Court Justice), the Attorney General is to be “an independent proponent of the rule of law”.
Exactly how and who will identify the interests of the people of the United States in any given circumstance is not clear. Legal commentators and historians have written extensively on the subject, notably, Nancy V. Baker, in her book Conflicting Loyalties: Law & Politics in the Attorney General’s Office, 1789 – 1990 (University Press of Kansas, 1992). For a more recent example, see William R. Dailey, writing in the Notre Dame Law Review (Who is the Attorney General’s Client, 87 Notre Dame L. Rev. 1113 (2013)).
Bondi, the former Florida Attorney General who represented Donald Trump in his first impeachment trial, is a fierce Trump loyalist who has refused to refute Trump’s false stolen election claims. As ranking Senate Judiciary Committee member Dick Durbin said as the committee was reporting out Bondi’s nomination to the full Senate: “It’s absolutely critical that any nominee for the position be committed first and foremost to the Constitution and the American people, not the president and his political agenda…[u]nfortunately, I’m unconvinced that Ms. Bondi shares my belief.” Sadly, she will not be the first Attorney General in our history who does not share that belief.
Attorneys General before Ms. Bondi have come in all shapes, sizes, political views, legal backgrounds. All but two (three, with Ms. Bondi) have been men. Many have adhered to Ramsey Clark’s formulation (or Dick Durbin’s for that matter). Some, not so much. Some were Presidential friends, confidantes, and apologists, like Edwin Meese, Reagan’s Attorney General and defender-in-chief and John Mitchell, Richard Nixon’s former law partner and campaign manager who ultimately went to jail for his role in the Watergate coverup. Bobby Kennedy served as principal advisor to and protector of his brother John. Some have operated in a less baldly political manner, like our most recent Attorney General, Merrick Garland (notwithstanding the phony claims of weaponization of the Department Ms. Bondi is determined to pursue at the behest of Donald Trump, ironically doing exactly what they accuse Garland of doing), and Jimmy Carter’s Attorney General (and fellow Georgian), Griffin Bell, each of whom seemed to approach the job like the judges they were. Several used the position to advance their own political agenda or, like the infamous Harry Daugherty, one of President Harding’s “Ohio Gang”, their own financial interests. Reno (like Bondi, a lifetime Floridian with limited expertise in federal law) did not even meet the President who appointed her, Bill Clinton, until the eve of her appointment, and, notwithstanding her position as a member of the Cabinet, was fiercely independent but outside the inner circle of influence. Each Attorney General’s approach to the position is shaped by the nature of the President who appoints them and nature and depth of the relationship between the President and the Attorney General.
The conflicts inherent in the Attorney General’s position are made considerably more complicated by their position as a member of the President’s cabinet, and head of a vast and complex Executive Branch bureaucracy responsible not only for representing the United States in legal matters, but also for law enforcement (the F.B.I., for example), punishment (the Bureau of Prisons), and from 1940 to 2003, immigration and immigration law enforcement. The Attorney General and the Department of Justice are expected to follow the President’s legal, political, and social priorities yet at the same time independently determine and protect the interests of the people of the United States, including against threats to those interests by the President or other members of the Executive Branch. The conflict in the position may be insurmountable, notwithstanding attempts to address the most obvious issues through the various independent counsel arrangements that have been employed since the first special prosecutor was appointed under President Grant in 1875, and which have attracted considerable focus since Watergate.
It may be easier to identify what the position is not—the Attorney General is not the President’s lawyer, their primary job is not to protect the President politically or otherwise, and it is certainly not to protect a President or any other member of the Executive Branch from the consequences of their own criminal actions. Nor to seek retribution against those who have done their job, to enforce the law and bring criminals to justice, whether the President or any other wrongdoer. And in no rational universe should the Attorney General aid and abet the violation of law and the Constitution, and the purposeful rejection of the rightful exercise of power by the Courts and Congress.
In the current Administration, independence is neither expected nor accepted, the rule of law be damned. And notwithstanding the Attorney General’s obligation to enforce the law, any show of such independence by Ms. Bondi, as unlikely as that may be, would no doubt result in her dismissal, but only after the crude verbal disparagement we have come to expect from the President she serves. There are serious problems to be addressed by the Attorney General and the Department she leads, but Ms. Bondi has chosen (or has been directed) to continue to indulge the fantastical claims of Donald Trump’s victimhood rather than attempt to solve them. Sadly, it is exactly what we have come to expect.
