Too Close for Comfort: An Insider’s View of Presidents and Their Attorneys General

The President’s power to appoint the Attorney General of the United States as a member of the Cabinet subject to dismissal contains the seeds of a fundamental rule of law crisis in the politicization of the U.S. Department of Justice. We are acutely aware of it in these times because of the shifting dynamics between our current President and his attorneys general. However, this is not a new problem revolving around these particular personalities. Readers of political history will recognize these recurring conflicts in at least six prior federal administrations.

When faced with political pressure and/or cronyism in the White House, U.S. Attorneys General (AGs) respond in markedly different ways. I’ve had the opportunity to observe many of them at close hand.[1] Their reactions range from capitulation to confrontation and pretty much everything in between. Each have earned their own monikers. The Foxtrotter. The Wingman. The Co-Conspirator. The Company Man. The Stand-Up Lady. The Witness. The Wallflower.

In the following Article, I devote a Section to each of the above AGs, beginning with personal recollections buttressed by historical research. I identify promising and practical areas for reform based on the larger implications of their conduct in office. I then amplify and combine these ideas in the concluding Section, calling for more drastic measures to rectify the missteps prompted by the inherent conflicts in the AG’s appointment process.

Some of the following vignettes illuminate character; some are simply the fallout of collateral circumstance. Yet all contain lessons worth conveying—and perhaps reforms worth considering, especially in the current political climate.

The Foxtrotter

Attorney General William P. Rogers had divided allegiances. Rogers’s primary objective throughout his time as Dwight Eisenhower’s AG was to get Vice President Richard Nixon elected President. Both his workday and after-hours time was devoted to that end. Indeed, whenever Nixon was running for office, Rogers rode on his campaign train (1952, 1960, and 1968).[2]

Bill Rogers was my father-in-law for twenty-four years, so I got to know him quite well and spent time with him in various settings. He was a product of the Depression and World War II and maintained a Cold War ideology on domestic issues of the 1950s. When Rogers was counsel to the Senate Judiciary Committee, he collaborated with then-Congressman Nixon on the Alger Hiss case before the House Un-American Activities Committee and became a close friend and adviser. He figured prominently in four of Nixon’s memoir’s six crises.[3]

Rogers counseled Nixon through his “Secret Rich Man’s Fund” debacle (where wealthy California businessmen donated money to pay for his personal expenses) when Nixon was running for Vice President in 1952 and on the verge of being booted off the ticket because of the scandal that had erupted in the press.[4] He flew to California to help draft Nixon’s famous Checkers Speech—the first nationally televised address delivered by an American politician—and was one of only a select few permitted to accompany Nixon to the empty auditorium where it was broadcast.[5] Its success forced Eisenhower to retain Nixon as his running mate, and Nixon often attributed his political resurrection to Rogers. From this point on, Rogers’s own political star was firmly fixed in Nixon’s firmament. They celebrated the anniversary of the Checkers Speech each year.

At Nixon’s urging, Eisenhower appointed Rogers first as Deputy Attorney General in 1953 and then as AG from 1957 to 1961. Rogers advised Nixon through Eisenhower’s two medical crises (one a coronary and the other, abdominal surgery) and often invited Nixon and FBI Director J. Edgar Hoover to private meetings at his home in Bethesda, Maryland, to escape the press (and theoretically the provisions of the Hatch Act that prohibited partisan activities by federal employees on federal premises[6]).[7]

This trio maintained a constant focus on teeing Nixon up to run against John F. Kennedy in 1960. Hoover’s mission was to compile a dossier on the Kennedys.[8] Rogers’s was to coach Nixon to use it in the campaign and to strategize about platform issues. With this ongoing planning, there is no doubt that Bill Rogers was a partisan attorney general, concerned first and foremost with promoting his candidate and removing any obstacles in Nixon’s way.

Most egregiously, immediately prior to Election Day in November 1960, Rogers used his authority as Attorney General in an attempt to sway the vote:

[W]hile a Justice Department lawyer was in the midst of presenting evidence [against Teamsters President Jimmy Hoffa] to a … grand jury, Rogers decided to postpone the case, most likely due to pressure from Vice President Nixon, who valued Teamsters support as a counterweight to John Kennedy’s endorsement by most other unions… . [After Nixon lost the election,] Rogers brought the indictment by month’s end.[9]

When Nixon was eventually elected President a decade later, he named Rogers as his Secretary of State. The men treasured and tended their friendship over the years, as was plainly seen in their New Year’s Eve celebration aboard the “Spirit of ’76,” Nixon’s nickname for Air Force One, in 1971. It was the eve of Hoover’s seventy-seventh birthday, so he blew out the candles on a White House chef’s cake while the President and the nation’s top diplomat lifted glass and voice. Their reminiscences were ex post facto evidence of a continuing cabal.

Photograph taken December 31, 1971, aboard Presidential plane, Spirit of ‘76, on flight from Key Biscayne, Florida, to Washington, D.C, showing left to right: Mrs. William P. Rogers; President Richard M. Nixon; J. Edgar Hoover; and Secretary of State William P. Rogers. (Cake was in honor of Mr. Hoover’s birthday January 1, 1972.) National Law Enforcement Officers Memorial Fund, https://www.flickr.com/photos/nleomf/8466362812/sizes/c/in/photostream [https://perma.cc/2UG2-HTGE]. Licensed under CC BY-NC 2.0, https://creativecommons.org/licenses/by-nc/2.0 [https://perma.cc/KE7Z-M2DP].

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Perhaps we already have statutes on the books to address the kinds of improprieties discussed above, but they may be paper tigers. Congress passed the Hatch Act of 1939, “An Act [t]o prevent pernicious political activities,” in order to prohibit federal officials from using their positions for partisan purposes.[10] Penalties should be enhanced and enforced. The usual official response is a warning or a slap on the hand.[11]

The unholy triumvirate of Nixon-Hoover-Rogers attempted interference with an election, a process whose sanctity we no longer take for granted. The moral of this story may be to allow the institutions to do their jobs and to take obstruction of justice seriously. Will the institutions we already have in place suffice, or are they fundamentally flawed?

As long as the AG is appointed by the President, conflicts with the rule of law appear to be inherent in the position. The AG is too often a product of the White House and unduly responsive to its needs. The Department of Justice (DOJ), as AG Janet Reno often remarked at official functions, must be above the political fray to function professionally.

The Wingman

If Rogers was unabashedly partisan in his role as AG, Robert “Bobby” F. Kennedy’s (RFK) loyalties were familial to a fault. Kennedy not only advised and protected his brother; he also intervened in presidential medical decisions and was the über Cabinet member—the one acknowledged to have the most clout. This led the Associated Press to dub him “Washington’s No. 2 Man,” which infuriated Vice President Lyndon Johnson.[12] The rule of law was secondary; the President’s welfare was RFK’s priority.

I only met Bobby Kennedy in campaign mode, but I was very familiar with his appointed U.S. Attorney in Oregon, Sid Lezak (for whom I worked from 1974-1982 as an Assistant U.S. Attorney prosecuting white collar, civil rights, and environmental crimes). Lezak was often put in the position of having to dodge RFK’s orders and phone calls. The Kennedy DOJ agenda was frankly political, and the AG viewed the ninety-three U.S. Attorneys as his field officers, charged with prosecuting his brother’s enemies. Defiantly, Lezak would take his phone off the hook and unplug the Telex machine.[13]  In Lezak’s later years, he would frequently recall the untoward interference with “ground troops” during the Kennedy years.

“If JFK wanted Bobby near,” Lezak would comment, “why not make him White House counsel? Why jeopardize the integrity of DOJ?”[14] And then Lezak would acknowledge that the President needed his brother to keep an eye on Hoover, who had done everything within his considerable power to undermine the Kennedys. That required being at DOJ headquarters, where Hoover had his office on the same floor and was theoretically reporting to the Attorney General.

Nominating his brother as Attorney General was not one of President Kennedy’s most astute decisions. It opened him up to charges of nepotism and bias in his Cabinet. It supplied grist to his congressional critics.[15] It did not inspire trust within DOJ itself. Career lawyers hunkered down to stay out of the AG’s way. Surely there were more qualified professionals to serve as the nation’s top law enforcement official within the President’s circle of friends.

When RFK was nominated, President Kennedy had to request a voice vote in the Senate because he knew his younger brother would never secure the requisite numbers in a roll call.[16] Both the New York Times and the New Republic called RFK “inexperienced” and “unqualified” (but nonetheless praised his accomplishments when he ran for Senate in 1964). In a Time magazine interview shortly after his inauguration, the President felt compelled to joke about his brother’s role: “I can’t see that it’s wrong to give him a little legal experience before he goes out to practice law.”[17]

Yet in his four years as AG, Bobby Kennedy managed to reorganize DOJ priorities to highlight organized crime and civil rights prosecutions, where he saw a unique federal responsibility. That further alienated Hoover, who wanted to emphasize the internal security threats of closeted Communists and domestic anti-war and civil rights protesters. Defying the FBI director, RFK significantly expanded the Civil Rights Division.[18]

Subsequent AGs of both political parties often cited RFK as a role model. Janet Reno hung his official portrait in her private office.[19] When John Ashcroft invoked Bobby Kennedy, it provoked an incredulous column in the Los Angeles Times listing their differences in values.[20] When Eric Holder said he found inspiration in RFK, Tara Helfman wrote an opinion piece in Commentary magazine headlined: “Mr. Holder, You’re No Bobby Kennedy.”[21] But like RFK, Holder grew into the job.[22]

To address congressional concerns about the JFK-RFK model, President Johnson passed and signed a federal anti-nepotism act in 1967.[23] The provision, contained in Title 5 of the U.S. Code, was dubbed the “Bobby Kennedy law” and was designed to prevent federal officials from promoting relatives.[24]

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!”

I would amend the law to add a section barring judges from administering the oath of office to anyone in violation. I would also forbid the Senate from scheduling a confirmation vote after conducting hearings that substantiated any of the relationships defined in 5 U.S.C. § 3110(a)(3).[25]

The Co-Conspirator and Cassandra

Over the course of Watergate, many AGs fell. Presidential co-conspirators were convicted; the ones who stood up to Nixon were fired. The one who did his bidding was later “Borked,” and the one who came in to try to clean up the mess only lasted a year. There was also a caretaker at DOJ (Richard Kleindienst) whose own resignation from the AG post was eclipsed by the firing of White House Counsel John Dean. Dean later pled guilty to conspiracy to obstruct justice and defraud the United States.[26]

The most sordid example of an attorney general doing a president’s dirty work (at least to date) is John Mitchell, who served Nixon in a number of capacities, including heading the aptly-named CREEP, the Committee to Re-Elect the President, in 1972.[27]

As I was then Secretary of State Bill Rogers’s daughter-in-law, I came to know his fellow Cabinet member John Mitchell and his wife, Martha. Nixon had asked Hoover to waive the background check on Mitchell to expedite his confirmation as AG, so the public had to rely on the press for information about him.[28]

Martha Mitchell was at the wedding shower that First Lady Pat Nixon and the “Cabinet Wives” threw for me. Even then, August 1971, Martha was eager to warn anyone within earshot about the corruption within the administration. John Mitchell tried to dismiss his wife as “mentally unbalanced” and disowned her remarks that were reported in the media. Rogers and cohorts John Ehrlichman and Bob Haldeman derided her as a “drunk.” Still, the “Mouth of the South,” as Martha was known, did not manufacture details out of thin air. She even had a psychological condition named after her: The Martha Mitchell Effect. It arises when mental health professionals label a patient’s accurate perception of real events as “delusional.”[29]

Martha was a colorful character, and I grew to appreciate her unwillingness to toe the party line. As the Watergate scandal unraveled, Martha was vindicated and cited as the “Cassandra” of Watergate.[30] After Nixon later resigned in disgrace, he complained to David Frost in a television interview that “[i]f it hadn’t been for Martha, there’d have been no Watergate.”[31]

Some of the stories surrounding her may never be verified, but we do know that John Mitchell hired a former FBI agent (Steve King) to rein in his wife and to keep her from talking to the press. We know this because she was talking to Helen Thomas, the veteran White House reporter for United Press International, when King yanked the phone cord out of its socket.[32]

During this time, Mitchell was transitioning from his role as AG to publicly heading CREEP. The Watergate break-in happened under his direction, and he lied about it to Congress. Mitchell was convicted of conspiracy to obstruct justice and perjury.[33] He was sentenced to a term of two to eight years in 1977 and served nineteen months until he was paroled for medical reasons.[34]

I happened to be in the White House five days before the Saturday Night Massacre. Nixon had conferred the Medal of Freedom on Rogers and was hosting a dinner in his honor, complete with the Marine Band playing waltzes. Attorney General Elliot Richardson and Betty and Gerry Ford were at my table. It was the night Spiro Agnew announced his resignation from the vice presidency, and Gerry Ford was to take his place.

The President kept asking me to dance, and I struggled for excuses to refuse. I was wearing a Chinese silk sheath made from material that Rogers had brought back from his trip to China with Nixon. Nixon was wearing the thick pancake makeup that he notably applied when he was having a press conference, and I wondered why he hadn’t removed it for the dinner—especially since he proceeded to smear it all over my shoulder. As the evening went on, I noticed that he repeatedly left the room for hallway conferences with various aides.

Just a few days later, I learned that Nixon had ordered Mitchell’s successor, Elliot Richardson, to fire the special Watergate prosecutor, Archibald Cox. Richardson refused and resigned, whereupon Nixon ordered Deputy Attorney General Bill Ruckelshaus to carry out the order. He, too, refused and resigned. Nixon then turned to the third-highest-ranking official in DOJ, Solicitor General Robert Bork, who complied and was driven to the White House in a presidential limousine to sign the termination papers. In return, as detailed in Bork’s memoir, Saving Justice, Nixon promised Bork a seat on the Supreme Court—a promise that he could not deliver.[35]

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The Ethics in Government Act (EIGA) was passed in the wake of Watergate in 1978 and signed by President Jimmy Carter.[36] Its stated purpose is to “preserve and promote the integrity of public officials and institutions.”[37] It has three main parts: required financial disclosures, restrictions on lobbying, and the establishment of the U.S. Office of Independent Counsel.[38] This last provision was strengthened during Reno’s tenure in 1999 to refine the appointment and protection of a special prosecutor.[39]

Institutions in this instance again fulfilled their responsibilities. Congress initiated Nixon’s impeachment proceedings, and special prosecutors secured convictions of co-conspirators. Nonetheless, it is up to the attorney general to enforce the Ethics in Government Act.

In the immediate aftermath of Watergate, two AGs—one Republican (Ed Levi) and one Democrat (Griffin Bell)—attempted to address the abuses that had occurred through their rule-making powers to institute protocols for communications between DOJ and the White House. They were both determined “to refashion the Justice Department into the least political, most independent part of the executive branch.”[40] It took only a brief political breath for the next AG in line to preside over a serious relapse.

The Company Man

When Ronald Reagan assumed the presidency in 1980, he, too, wanted a political operative sitting in the attorney general’s chair. The post-Watergate reforms embodied in EIGA didn’t give him pause. After serving as the president’s chief White House counsel from 1981 to 1985, Edwin Meese III moved over to DOJ accompanied by some accumulated baggage, and after a year of fierce opposition in Congress, he was finally confirmed on a divided vote.[41]

Meese was a California crony of Reagan, serving as the then-governor’s chief of staff from 1967 to 1974. He was active in the national election campaign and chaired Reagan’s presidential transition team. Meese’s fingerprints were on everything the President handled.

So close were they that David Gergen described Meese as the President’s “alter ego,” and Reagan’s biographer cited Meese as Reagan’s “geographer.”[42] As a consequence, when he was AG, Meese remained involved in some troublesome situations in the White House. For instance, the independent counsel for Iran-Contra matters, Lawrence Walsh, stated in his report that Meese’s knowledge of the 1985 HAWK transaction (laundering missiles for Iran through Israel) “raised serious legal questions.”[43]

At the Senate’s request, Archibald Cox wrote a report to its Judiciary Committee during Meese’s confirmation hearings citing his “lack of ethical sensitivity” and “blindness to abuse of position.”[44] This concern was prescient given Meese’s later involvement in corporate scandals such as the Bechtel Iraqi pipeline and WedTech’s military contracts with alleged kickbacks. 

Echoing Cox, Special Prosecutor James McKay found more ethical violations and financial wrongdoing that benefitted Reagan supporters—all this while Meese was supposedly enforcing the rule of law. Morale at DOJ plummeted.

In the wake of these findings, six senior Justice Department officials, among them Deputy Attorney General Arthur Burns and Criminal Division head William Weld, resigned in protest of Meese’s malfeasance in office.[45] Others were considering it, including the Solicitor General, Charles Fried.[46] Despite their warnings that the department was becoming a laughingstock, the President vouched for Meese. He and Meese joined forces to fire all the inspectors general in the federal agencies. Outraged, Congress intervened and demanded their rehiring.[47] In the midst of all these resignations and firings, Meese finally added his own in July 1988 when the independent counsel presented his WedTech report to Congress. Meese was immediately awarded the Ronald Reagan Chair of Public Policy at the conservative Heritage Foundation, which he has used as a base ever since to fashion and promote political agendas.[48]

***

Along with the Ethics in Government Act, the Inspector General Act was also enacted by the ninety-fifth Congress in 1978 and signed by President Carter.[49] It contains five major provisions which grant an inspector general (IG) the authority to: 1) review internal documents; 2) investigate fraud; 3) give policy advice; 4) handle ethical complaints by employees; and 5) report to Cabinet officials and Congress every six months. IGs were required to be:

appointed by the President, by and with the advice and consent of the Senate, without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations… . Neither the head of the [agency] nor the officer next in rank below such head shall prevent or prohibit the [IG] from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena… .[50]

These provisions could be productively modified to apply to the appointment of the AG as well. It would be worthwhile for Congress to contemplate an AG nominee who had to meet these standards, especially the language about “without regard to political affiliation and solely on the basis of integrity and demonstrated ability in … law.”

So, what have we learned so far in this account? Appointment of the AG by the President is problematic and may contain the seeds of its own abuse. Certainly, the AG should not be the President’s best friend or personal lawyer, a relative or campaign manager. A solution may be found in the reforms instituted by Reno concerning special prosecutors.

The Stand-Up Lady

As was well known, due to the other nominees’ tax issues, Reno was President Clinton’s third choice for AG[51]—probably a good thing for her. They didn’t know each other, and she was not beholden to him. She was the second-longest serving U.S. Attorney General in history (1993-2001)—evidence of her independence and bipartisan support. She had an especially good relationship with Senator Orrin Hatch (R-Utah), Chairman of the Senate Judiciary Committee.

As State’s Attorney for Miami-Dade County in Florida, Reno had built a reputation for high ethical standards. Although long-legged and tall (six-foot-two), she insisted on flying in cramped coach. In sharp contrast, Jeff Sessions (just over five-foot-four) was piloted around the country in a spacious military jet. When Reno purchased a car, she didn’t seek bargains but steadfastly paid the sticker price.[52] She was also known for her common sense and compassion.

Reno conscientiously did her own vetting of judges and U.S. Attorneys. When I was summoned for my interview with her in her imposing fifth-floor office at DOJ headquarters, she had read everything in my FBI file (more than six hundred pages!) and all my application materials, including the copies of a dozen articles I had authored.

At the first meeting she held with all ninety-three U.S. Attorneys in January 1994 at the Willard Hotel across from the White House, we recognized that she would be in a tough position with both the President and First Lady as lawyers who would second-guess her. I gave her a carved wooden turtle with a note reminding her that she would always make progress if she stuck her neck out. She kept it on the corner of her desk for her entire eight-year term.

She surrounded herself not with political appointees, but with people who had impeccable credentials that she had come to know and trust. She was a tough taskmaster and called people on sloppiness or if she thought they were omitting significant details. She was not afraid to express regrets and accept responsibility, as exemplified by her reaction to the Waco fiasco where ATF and FBI agents raided a compound, resulting in the deaths of eighty-two cult members. She earned her nickname “Stand-Up Lady” early on.

I served on the Attorney General’s Advisory Committee (AGAC) for four years and traveled back to D.C. once a month to consult with a dozen other U.S. Attorneys from around the country on issues that were troubling the AG: domestic terrorism, sentencing disparities, environmental degradation, the death penalty, Native American issues, white collar crime, and federal drug policies.[53] Although diagnosed with Parkinson’s disease a year into her tenure, Reno refused to take prescribed medicines because of their side effects, primarily fatigue. As her tremors became more pronounced, she acknowledged her condition and answered questions without hesitation about any impairment.[54] Fatigue was not in her vocabulary. She continued to model and set high expectations for her staff in D.C. and in her frequent visits to the field.

Most telling was Reno’s authorization of over a dozen special prosecutors to investigate allegations of illegal activity by the President, his wife, and his Cabinet.[55] Members of Congress on both sides of the aisle grew to respect and trust her judgment and honesty in responding to their requests. She did not play politics or dodge difficult issues.

She also had a disarming sense of humor and humility. When NBC’s Saturday Night Live spoofed her awkwardness, she joined in the laughter. She even made a surprise appearance in their “Janet Reno Dance Party” sketch on one of her last days in office. Comedian Will Ferrell, who impersonated her, was smitten, even tongue-tied. “Hello, Janet,” he stammered. “I like your blue dress.”

Reno died in her home in the Everglades at the age of seventy-eight, one day before the 2016 elections. She had been excited at the prospect of the first female president. In his eulogy, Bill Clinton remarked: “I don’t believe Janet Reno ever cut a corner in her life.”[56]

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Reno wanted to leave a process in place for future attorneys general to follow in selecting special prosecutors, in hopes of eliminating any arbitrariness. She had it codified in 28 CFR Part 600. In it, she detailed qualifications, jurisdiction and authority, conduct and accountability, and grounds for removal (e.g., misconduct, dereliction of duty, incapacity, conflict of interest, etc.). It was pursuant to these regulations that Deputy Attorney General Rod Rosenstein appointed Robert Mueller as special counsel in the 2016 election Russian interference inquiry and established the parameters of his investigation. It is now being cited in the case against Paul Manafort as evidence of authorization for the scope of the inquiry.[57]

The Witness and the Wallflower

Sally Yates served as acting AG for the first ten days of the Trump Administration. In that cameo appearance, she made two deft moves. She visited the White House and warned them about security issues involving National Security Advisor Michael Flynn, who later pleaded guilty in Mueller’s Russia investigation. Her fireable offense was her refusal to defend Trump’s travel ban in the courts: “insubordination.”[58] She then had the audacity to testify before Congress about her interactions with the White House on this issue. In that setting, Politico cited Yates as “the face of institutional resistance.”[59]

I had the privilege of participating in a Wellesley College webinar with Yates on January 8, 2018 in the Madeline Albright lecture series “Navigating Truth and Trust in a World Transformed.” Her professionalism and reverence for the rule of law permeated everything she said. She kept repeating that it is patriotic to protect legal institutions and that decisions at DOJ must be based on facts and law and “absolutely nothing else.” She insisted that the aspirational standard is for a “wall between DOJ and the White House” because of the need to hold officials accountable. She maintained that DOJ transgressions are “aberrations” and repeated the biblical injunction, “Justice, Justice shall you pursue.”[60]

Yates has more faith in institutions than I do. True, without interference, they can function as intended. But rarely do they operate in a political void. In a public conversation with Matt Apuzzo on “TimesTalks,”[61] Yates worried about Trump’s “relentless attack on democratic institutions and norms” leading to an erosion of public trust that it will take years to regain.

In his book, A Higher Loyalty, James Comey repeatedly vouches for the nonpartisanship of the FBI and DOJ.[62] He knows better, especially in light of the incidents recounted above with Hoover and others, coupled with various covert activities since that time. Trump’s firing of Sessions the morning after the 2018 midterm elections is further proof of this point. Institutions are only as good as their leaders.

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The yin to Yates’s yang, Jefferson Beauregard Sessions III was oblivious to the inconsistency between his lip service to the rule of law and his proclaimed desire to “do what the president wants me to do.”[63] He boasts about his honor, but he sent a Department of Justice aide over to the Hill to dig up dirt on Comey for the White House.[64] He did Trump’s bidding in drafting a rationale for firing the FBI director. True, Sessions recused himself from matters involving the investigation into Russian meddling in the 2016 election,[65] but he appears to have ducked that role not due to respect for the rule of law, but to extricate himself from an increasingly messy situation. Frank Bruni has skewered Sessions as “never the nimblest newt in the swamp.”[66] His craven dance with Trump made Sessions fodder for lampoons in the media.[67] Suffice to say, Sessions is not portrayed as a stand-up guy.[68]

Since Sessions was the first senator to endorse Trump and remained steadfast throughout the campaign,[69] the President assumed that he would be someone he could count on at DOJ to have his back.[70] When Sessions stepped aside, leading to the appointment of Special Counsel Mueller, “[T]he president erupted in anger in front of numerous White House officials, saying he needed his attorney general to protect him … the way he believed Robert F. Kennedy, as attorney general, had done for his brother.”[71] Trump then demanded, “Where’s my Roy Cohn?”[72] whom the New York Times described as:

a litigious thug who helped destroy the lives of many decent people before being disbarred for “particularly reprehensible” ethical violations, [and who] took a young Mr. Trump under his wing and taught him how to use the law: as a concealed weapon, brandished primarily in the service of vengeance or survival.[73]

What followed was an unremitting barrage of tweets and public statements by Trump disparaging his Attorney General. In an Oval Office meeting, he requested Sessions’s resignation but then refused to accept it.[74] Two months later, the New York Times reported that the President “excoriated Mr. Sessions for not ordering his own investigation into the handling of the Russia inquiry during its early months, calling his attorney general ‘DISGRACEFUL’ in a lacerating Twitter post.”[75] This front-page article went on to observe that Sessions and Trump “rarely speak except in formal meetings, and both sides describe the relationship as broken.”[76] Perhaps that portended well for the survival of the rule of law for a brief interlude, but not after Trump’s response to the midterm elections.

Over Labor Day weekend, Trump again criticized Sessions in a tweet complaining about federal indictments of two Republican members of Congress.[77] And in Bob Woodward’s recently published book, Fear, Trump is quoted as commenting about Sessions: “This guy is mentally retarded. He’s this dumb Southerner… . How in the world was I ever persuaded to pick him for my attorney general?”[78]

While Trump watched the midterm election returns on White House television monitors, he huddled with lawyers representing him in the Mueller investigation. During their discussion, it was noted that Sessions’s Chief of Staff, Matthew Whitaker, had objected to the scope of that probe. The next morning, self-styled “loyalist” Whitaker was named acting AG.[79] Trump had his Roy Cohn in position to curb the Special Counsel. If the DOJ dominoes now fall in a bald retake of Nixon’s Saturday Night Massacre, Solicitor General Noel John Francisco—another Trump loyalist and former Antonin Scalia law clerk for whom the White House has waived any conflicts[80]—may become this generation’s Bork (i.e., third in line to do the President’s bidding). Though the Democrats now control the House, the Republican-controlled Senate will readily confirm any Trump nominee.

That nominee was William Barr, a former U.S. AG in the George H.W. Bush Administration who has expressed doubt about Bob Mueller’s investigation and also supports a broad definition of presidential powers.[81] Members of the Senate Judiciary Committee were right to question him closely about those past opinions and to press (as was done in Elliot Richardson’s confirmation hearing during Watergate[82]) that Barr pledge not to interfere in the Special Counsel’s ongoing work and to release its report to Congress. The Senate confirmed Barr on February 14, 2019.[83]

So, What Is to Be Done?

It must be recognized 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 official in the land should not be a reward for political or personal loyalty.

Congress should confer on the Attorney General the same insulation that it provided for inspectors general or that some members (at the time of this writing) are contemplating to prevent Trump from firing Mueller.[84] Indeed, Senator Jeffrey Flake (R- AZ) has refused to vote to confirm any more federal judges until the Senate acts on pending bipartisan legislation to establish terms and appeals for the SC’s dismissal.[85]

AG Candidates should also be scrupulously vetted for conflicts. A disqualifying list of categories (financial, legal, and personal) could be supplied by the American Bar Association based on its ethical standards for the profession as a whole.[86]

Furthermore, AGs should be fired only for cause.[87] What constitutes “cause” in this context could be enumerated by Congress in specific grounds for impeachment. Instead of a vague phrase like “high crimes and misdemeanors,” the AG should only be removed from office based on clear and convincing evidence of misconduct, such as interference in an investigation, financial impropriety, personal involvement in influencing a federal election, refusing to comply with a Congressional subpoena, or conspiracy to commit a federal crime—for starters.

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. Article II, Section Three of the Constitution appears to give the President ultimate prosecutorial power.[88] An aspect of that authority could be shifted to the judicial branch without eroding the separation of powers, just as the courts have oversight responsibility with respect to federal defenders and some U.S. Attorneys.[89]

Certainly, the selection of an attorney general needs to be done with as much care as a special prosecutor for an individual case or an inspector general for an agency. Simply put, the AG needs a job description. Qualifications could be spelled out and candidates evaluated by a panel of equal numbers of Democratic and Republican appointees from the judiciary, composed of one representative from each of the federal appellate circuits selected by the Chief Justice and staffed by the Administrative Office of U.S. Courts.

Elements of the professional profile for an AG candidate might begin with a preface similar to that for an IG: “without regard to political affiliation and … on the basis of integrity and demonstrated ability in … law.”[90]  Duties would include: 1) serving as the chief federal law enforcement officer, supervising litigation both civil and criminal; 2) representing the United States in the Supreme Court in cooperation with the SG[91]; 3) certifying the integrity of national elections; 4) supervising the federal investigative agencies; 5) ensuring the defense of civil rights; and 6) developing policy for the fair and impartial administration of justice, to name a few obvious ones.

Grounds for removal would include dereliction of duty in any of the above areas, plus financial impropriety, refusing to comply with a duly authorized subpoena, conspiracy to commit a federal or state crime, or any conduct compromising the independence of the Department of Justice. Such specificity ought to garner bipartisan support in Congress if implemented in a year when there is not a Presidential election, when neither side can be assured of the outcome of the next appointment cycle.[92]

We have court-appointed U.S. Attorneys (in the absence of Senate-confirmed ones) and court-appointed federal defenders. Clearly the courts are trusted to make these decisions. Why not court-appointed U.S. Attorneys General? Indeed, the U.S. Supreme Court upheld a similar arrangement in Morrison v. Olson[93] as not violating the separation of powers doctrine. While the statute in question in Morrison (the 1978 Independent Counsel Act, which provided for judicial review of the actions of executive branch officials via an independent counsel[94]) was allowed to lapse, the case law still stands despite Scalia’s dissent.[95]

Dare I take one step further and suggest that there be a system of evaluation, a “performance review” of any AG in office for more than two years? Such reviews are routinely conducted for DOJ personnel in the field and in federal defenders’ offices. Should the head of the department be subject to any less scrutiny?

In his 1977 farewell remarks to his DOJ colleagues, AG Ed Levi warned them to maintain their vigilance: “We have shown that the administration of justice can be fair, can be effective, can be nonpartisan. These are goals which can never be won for all time. They must always be won anew.”[96]

We have strayed quite some distance from our model of justice as “blind.” We need to restore balance to the scales of justice. In order to accomplish that, we need to withdraw the President’s tipping finger and affirm that—without exception—no person is above the law.