The Next Attorney General’s Allegiance Must Be to the Rule of Law

As President-Elect Joe Biden assembles a Cabinet, one of his most consequential decisions will be to choose the man or woman who will serve as the nation’s 85th attorney general. The eventual nominee will bear the heavy burden of restoring public confidence in the Department of Justice (DOJ), an institution whose most basic guiding norms have been upended, and whose dedicated but beleaguered career public servants have been subject to repeated attacks from the outgoing president and Attorney General Bill Barr.

Biden will choose from a pool of many qualified individuals. But, in our view, the key credentials of the next AG should be significant prosecutorial experience at the federal or state level and an abiding fidelity to the apolitical administration of justice, even if doing so results in outcomes that do not politically benefit the new administration. Such a choice would go a long way toward reassuring the public and rank-and-file DOJ attorneys and law enforcement agents that the incoming leadership understands that the Department’s mission is to pursue impartial justice, guided by evidence and law, free from partisan considerations.

There may be no agency head more central to the effective functioning of American democracy than the attorney general. As the nation’s chief law enforcement officer, the AG must make real the constitutional promises of equal protection and due process under law. Once the AG emerges from the political process of presidential appointment and Senate confirmation, he or she must abstain completely from partisanship. The DOJ’s Justice Manual spells this out clearly: “The rule of law depends upon the evenhanded administration of justice. The legal judgments of the Department of Justice must be impartial and insulated from political influence.”

Every day the attorney general is confronted with decisions testing his or her commitment to this ideal. Robert Jackson, who held the position before his appointment to the Supreme Court, once observed:

The prosecutor has more control over life, liberty, and reputation than any other per­son in America. His discretion is tremendous. He can have citizens in­vestigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed.

Any hint that political considerations influenced a prosecutorial decision undermines public confidence in the even-handed administration of justice.

Because the role of the attorney general is so sensitive, the positon should be filled by individuals who need no on-the-job training. Both of the Senate-confirmed attorneys general who served during the Obama administration — Eric Holder and Loretta Lynch — had served as career federal prosecutors for significant periods in their careers. Both came up through the ranks and understood what it means to work in the trenches. Both possessed the knowledge, skills, and experience needed to win the confidence of the thousands of career public servants who carry out the day-to-day work of the Department. And both understood their roles as stewards of the Department’s core value of fair and impartial administration of justice free from partisan political considerations. [Full disclosure: Ronald Weich, one of the authors of this piece, led a team assisting Holder through the Senate confirmation process and co-author Edgar Chen was part of the DOJ Legislative Affairs team handling Lynch’s confirmation.]

The core value of nonpartisan justice has been sorely tested in recent years. The outgoing attorney general argued recently that career prosecutors could not be entrusted with difficult decisions and that political control over law enforcement was necessary and desirable. Meanwhile, Trump himself famously lamented, “Where’s my Roy Cohn?” in seeking an attorney general whose first priority would be to serve as fixer and personal lawyer for the president. Paradoxically, Trump held a misguided admiration for the relationship between Holder and President Barack Obama, erroneously viewing it as one of personal fealty and believing that protection of the president was the principal criteria for leading the DOJ: “I will say this: Holder Protected President Obama. Totally protected him…. Holder protected the president. And I have great respect for that, I’ll be honest.” This statement revealed the president’s deeply flawed and sub-elementary grasp of concepts such as rule of law. Holder got the last word: “I had a president I did not have to protect.”

While Holder was indeed a trusted adviser to Obama, that role was separate from his duties as attorney general. Holder, who had come up through the Department as a career public corruption prosecutor and later served as U.S. Attorney for the District of Columbia and deputy attorney general, took great pains to ensure that law enforcement decisions were strictly insulated from White House participation. In fact, there are several notable instances when Holder acted in a manner that did not favor Obama’s or the Democratic Party’s political interests.

Those events include:

  • The dismissal of charges against Alaska Republican Senator Ted Stevens. Stevens had been convicted of failing to disclose gifts received from an oil services company. Holder ordered the dismissal of the charges after it came to light that the prosecution team failed to provide potentially exculpatory materials to Stevens’ defense. In the wake of these Brady disclosure failures, Holder also ordered a comprehensive review of discovery practices and instituted additional rigorous training for all prosecutors on their obligations to defendants. It is notable that Holder began his prosecutorial career in the same office (Public Integrity) responsible for the Stevens prosecution.
  • The conviction of Alabama Democratic Governor Don Siegelman. Siegelman had been convicted of bid-rigging and fraud, but argued that his prosecution by the George W. Bush administration was politically motivated. An extensive review by the DOJ’s career-led Office of Professional Responsibility (OPR) concluded that evidence did not demonstrate that the investigation and prosecution of Siegelman was pursued for political purposes, although OPR did find some instances where prosecutors did not exercise prudent judgment. Holder faced pressure from Democratic politicians, and even the New York Times editorial board to reopen the case. Holder did not intervene.
  • The prosecution of former Democratic Senator John Edwards. Edwards was indicted on campaign-finance related charges. Holder recused himself from the matter because he had participated in vetting Edwards as the Democratic nominee for vice president in 2004. This decision mirrored Attorney General Jeff Sessions’ later recusal from the Russia probe since he served as an adviser to the 2016 Trump campaign.

In all these cases, decisions by the attorneys general (and we use the plural here to include Session’s correct recusal) were based on ethics rules; respect for the non-partisan, apolitical work of career investigators, prosecutors, and professional responsibility officials; and the willingness to buck political affinity in order to adhere to established principles, and in the case of the Stevens prosecution, overturning the decisions of career prosecutors only because clear and blatant ethics or judicial violations were unambiguously documented.

In recent days, career prosecutors have demonstrated their commitment to the apolitical administration of justice.  When Attorney General Barr took the unprecedented step of authorizing federal prosecutors “to pursue substantial allegations of voting and vote tabulation irregularities prior to the certification of elections,” contrary to longstanding DOJ policy, the Director of the Department’s Elections Crimes Branch resigned in protest and at least 16 career federal prosecutors assigned to monitor elections offered a public rebuke of Barr’s action, arguing the need to avoid “speculation that it was motivated by partisan political concerns.”  These career civil servants placed principle over partisanship, even at great risk to their livelihoods.  Whomever Biden selects as AG must share their determination to do the right thing, even at the risk of offending the occupant of the White House.

The Department of Justice is the only federal agency named after an ideal. The next attorney general should remain true to that ideal and follow in the examples described above by previous attorneys general and career prosecutors who have risked their positions and indeed careers to do what is right, in order to preserve the constitutional principles upon which justice in this nation is predicated.

Image: The Justice Department building on a foggy morning on December 9, 2019 in Washington, DC. Photo by Samuel Corum/Getty Images

 

About the Author(s)

Ronald Weich

Dean and Professor of Law at the University of Baltimore; formerly served as an Assistant Attorney General in the U.S. Department of Justice during the Obama administration and as Chief Counsel to U.S. Senate Majority Leader Harry Reid and Sen. Edward M. Kennedy.

Edgar Chen

Edgar Chen previously served as Counsel to the Assistant Attorney General for the Criminal Division, as well as in the Office of Legislative Affairs and the Human Rights and Special Prosecutions Section, at the U.S. Department of Justice.