Darrell Berkheimer: Need to correct Attorney General situation
Perhaps if our Democratic Party friends and various members of the media would spend a little time reading about the recent history of our U.S. Attorneys General, they would not be so shocked and surprised by William Barr’s political efforts to shield President Donald Trump.
Although our attorneys general are charged with administering justice, as head of the U.S. Department of Justice, they are nominated and appointed by the president, with advice and consent by the Senate.
It’s a political appointment — plain and simple.
That means they owe their allegiance, their loyalty, to the president — and not to the voters — because they serve at the president’s whim and pleasure.
That’s a situation that needs to be corrected.
In a lengthy article published a few weeks ago, Kris Olson, the former U.S. Attorney for the District of Oregon, recounts the political actions of recent attorneys general going back to Attorney General William P. Rogers under President Dwight D. Eisenhower.
Her analysis, titled “Too Close for Comfort: An Insider’s View of Presidents and Their Attorneys General,” is published in this year’s Spring edition of Yale Law & Policy Review.
Having served in the Oregon District from 1994 to 2001, Olson reports she “had the opportunity to observe many of them at close hand.” She notes they often violated the Hatch Act of 1939, enacted “to prohibit federal officials from using their positions for partisan purposes.”
Although frequently ignored, occasional violations of the Hatch Act are cited. She added that the “usual official response is a warning or a slap on the hand.”
She observed that one of President John F. Kennedy’s poorest decisions was selecting his brother as Attorney General. “It opened him up to charges of nepotism and bias in his Cabinet. … It did not inspire trust within” the Department of Justice.
President Lyndon Johnson subsequently passed and signed a federal anti-nepotism act in 1967 — dubbed the “Bobby Kennedy law.”
Olson asks: “But what’s the remedy for this kind of nepotism? No pay? RFK or Ivanka Trump could not care less about that. Who declares the appointment invalid? As our current President would say, ‘So sue me!’”
Olson “would amend the law to add a section barring judges from administering the oath of office to anyone in violation.”
She also refers to the Ethics in Government Act passed in the wake of the Nixon-Watergate events, and signed into law by President Jimmy Carter. It’s three main parts require financial disclosures, restrictions on lobbying, and the establishment of the U.S. Office of Independent Counsel.
But the act is flawed because it is up to a political appointee — the attorney general — to enforce it.
Olson concludes that “As long as the (Attorney General) is appointed by the President, conflicts with the rule of law appear to be inherent in the position.”
So I must ask: Isn’t the solution then to change the law so that the attorney general is not appointed by the president? After all, 43 of our 50 states have the attorney general elected by the voters. And we know California is one of them.
That tends to take the Attorney General’s loyalty away from the president and give it to the voters.
Only five of our states allow the governor to appoint an attorney general – Alaska, Hawaii, New Hampshire, New Jersey and Wyoming. In Maine, the attorney is appointed by the state legislature. And in Tennessee, the position is filled by the state’s supreme court.
Obviously, election by the voters is the preferred choice for picking an attorney general. So why can’t we make that change in our federal government?
I learned it can be done simply by new legislation passed by Congress.
Originally, I supposed the change would take an amendment to the Constitution, which our history has shown to be a most difficult feat to achieve.
But a bit of research reveals the attorney general’s position was not created by the Constitution, but by an action of our first Congress, when it passed the Judiciary Act of 1789. So a constitutional amendment would not be necessary — only a new act by Congress.
And the Department of Justice was not created until 1870 during the Ulysses S. Grant administration. So it is not a part of the Constitution, either.
That indicates to me that the Justice Department not only could, but should, be made an autonomous department in our federal executive branch, with an elected attorney general as its administrator.
Again, all it would take is new legislation by Congress.
But such reforms require a groundswell from voters – just as more and more voters are pressuring politicians and our Supreme Court to end gerrymandering.
Olson provides more guidance on what any new legislation should include. She says attorney general candidates should display “integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, (and) public administration. … Simply put, the (Attorney General) needs a job description,” she said.
She adds that candidates “should be scrupulously vetted for conflicts, … (and) should be fired only for cause.”
“It must be recognized,” she wrote, “that the Department of Justice is unlike other departments of the federal government. To preserve its integrity and authority as envisioned at its creation, its nonpartisanship is essential. The office of the highest law enforcement in the land should not be a reward for political or personal loyalty.
“The tension between the White House and DOJ is inherent in the nature of the current political appointment process and calls for a drastic remedy, not procedural fixes,” Olson added.
Olson does not expressly call for election of the attorney general rather than appointment, but her call for a “drastic remedy” provides the basis for a move to create an autonomous department with an elected administrator.
So now it’s up to us — the voters — to demand such legislation.
Darrell Berkheimer, who lives in Grass Valley, is a frequent contributor to The Union. He is the author of six books available through Amazon. His latest, Essays from The Golden Throne, also is available at Book Seller in Grass Valley. Contact him at firstname.lastname@example.org.
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