The firing of U.S. Attorney General Jeff Sessions and the appointment of his chief of staff Matthew Whitaker as Acting Attorney General has generated firestorm of controversy and protest. Whitaker is widely thought to have earned Trump’s nod for the top job for his opposition to the investigation being conducted by Special Counsel Robert Mueller. Democratic leaders in Congress have demanded that the independence of the Department of Justice and the Office of the Attorney General be protected. They also have warned of an impending “constitutional crisis” and promised an investigation as soon as they take control of the House of Representatives in January.
Commentators noted that Sessions was fired even though he was an extremely faithful adherent to President Donald J. Trump’s agenda and concluded that the rule of law, not Sessions, was Trump’s real target.
As if to give evidence of those concerns, Sessions used his resignation letter to detail his fidelity to the president’s agenda:
The team we assembled embraced your directive to be a law and order Department of Justice. We prosecuted the largest number of violent offenders and firearm defendants in our country’s history. We took on transnational gangs that are bringing violence and death across our borders and protected national security. We did our part to restore immigration enforcement… And we have seen results. After two years of rising violent crime and homicides prior to this administration, those trends have reversed.
Yet Sessions also claimed that as Attorney General he had “restored and upheld the rule of law,” which he called “a glorious tradition that each of us has responsibility to safeguard.”
It is only amid the excesses and dysfunction of the Trump administration that Sessions could plausibly present himself as a heroic defender of the rule of law. When President Ronald Reagan nominated him to become a federal judge in 1986, the Senate Judiciary Committee rejected his nomination after it became known that he had made racist comments and called the civil rights organizations American Civil Liberties Union and National Association for the Advancement of Colored People “un-American” while serving as a U.S. Attorney.
As a Senator, Sessions was best known for his ultra-conservative views and voting against President Barack Obama’s two Supreme Court nominees Sonia Sotomayor and Elena Kagan. He supported building fence to separate the United States and Mexico, saying “good fences make good neighbors.”
Balancing Act
Yet the tension between political loyalty and dedication to the rule of law that Sessions acknowledged is built into the role of the Attorney General, no matter who occupies the office. As a result, Sessions was not the first Attorney General, nor will he be the last, to have to carefully navigate tricky legal and political cross-currents.
Throughout American history, presidents have looked to their Attorneys General to be political allies as much as impartial defenders of the rule of law.
President John F. Kennedy’s appointment of his brother Robert to that position and Richard Nixon’s appointment of John Mitchell, one of his closest friends, offer two relatively recent examples of strong alliances.
President Trump pointed to the political favoritism allegedly shown to Hillary Clinton by President Obama’s Attorney General Loretta Lynch as a precedent for having his Attorney General act as his political protector.
Given Trump’s seeming desire to derail the ongoing investigation into whether the Trump campaign colluded with Russians, the appointment of Whitaker may be the most extreme and dangerous example of this desire to see the Attorney General as a presidential ally and defender.
As a result, the United States might soon want to consider radically changing the structure of the Attorney General’s office and follow the example of other constitutional democracies by dividing the responsibilities of that office. In this scheme, the Attorney General would be an independent, non-partisan lawyer responsible for investigation and prosecution while a new Minister of Justice would serve in the Cabinet and be responsible for carrying out the president’s policies rather than making decisions about the fate of particular individuals.
In the meantime, American citizens and our political leaders, whatever their political affiliation, need to ensure that the Acting Attorney General’s fidelity to the president’s policy agenda will not be confused with fidelity to the president himself and his legal fate.
As the Republican Majority Whip Senator John Cornyn observed in 2012, when he called for the resignation of then Attorney General Eric Holder, “Americans deserve an Attorney General who will be honest with them. They deserve an Attorney General who will uphold the basic standards of political independence and accountability.”