Needed: an Elected Attorney General and an Independent Justice Department

By JOEL D. JOSEPH

The office of the Attorney General was established by the Judiciary Act of 1789 as a part-time job for one individual. George Washington chose the first attorney general, Edmund Randolph, one of the lesser-known Founding Fathers. Randolph was selected as one of 11 delegates to represent Virginia at the Continental Congress in 1779, and served as a delegate through 1782. During this period he also remained in private law practice, handling numerous legal issues for George Washington, among others.

As delegate from Virginia to the Constitutional Convention, at age 34, Randolph introduced the Virginia Plan as an outline for a new national government. He argued against importation of slaves and in favor of a strong central government. Randolph additionally proposed, and was supported by unanimous approval by the Convention’s delegates, “that a National Judiciary be established” (Article III of the Constitution established the federal court system). The Articles of Confederation lacked a national court system for the United States and relied solely on state courts.

The Constitution did not establish the office of attorney general, the Justice Department or the FBI. In 1789 we were a developing nation with a small population without the need for a large legal bureaucracy.

The Office of the Attorney General and the Justice Department have evolved over the last 240 years. At first, the “Justice Department” had one part-time employee (Mr. Randolph). Now it has more than 100,000 employees, including the Federal Bureau of Investigation.

President Trump’s firing of James Comey, and his intent to fire Special Counsel Robert Mueller, demonstrate that we need an independently elected attorney general to run the Justice Department. An independent Justice Department would not be subject to presidential influence or control.

Experience of the States

As we elect attorneys general in nearly every state, we should elect the US Attorney General. The office of Attorney General has been a political, not legal, position for far too long.

An elected attorney general would be independent of the White House — he or she could not be fired by the President. The elected attorney general would be responsible to the people who elected him or her. As the FBI is part of the Justice Department, the elected attorney general would appoint the head of the Bureau.

Of the 50 state attorneys general, 43 are elected. In five states the attorney general is appointed by the governor (Alaska, Hawaii, New Hampshire, New Jersey and Wyoming). In Maine, the attorney general is selected by secret ballot of the legislature and in Tennessee, the state Supreme Court appoints the attorney general.

Real Independence

Attorney General Jeff Sessions, who recused himself from the Russian inquiry, nonetheless assisted President Trump in his removal of James Comey as head of the FBI. Neither the Attorney General, nor President Trump, had the right to fire the FBI director. Eighty-two years ago, the US Supreme Court ruled against Franklin Roosevelt’s firing of an FTC Commissioner (Humphey’s Executor v. United States, 295 U.S. 602, 1935).

Director Comey, like Commissioner Humphrey, was appointed for a designated term and could only be fired for cause. The cause cited by the president was clearly subterfuge — the real reason was to stop Comey’s investigation of the Trump campaign’s connection with Russia. James Comey could have filed suit to challenge his termination, but has apparently decided not to challenge President Trump’s actions, and to publish his side of the story in his book, A Higher Loyalty.

Let the People Decide

Let the people decide who should enforce our laws. An independent elected Attorney General would no longer be the president’s puppet, crony or brother. An independent Attorney General would appoint all of the US attorneys without any political assistance from the president or senators. An independent Justice Department and an independent FBI would investigate alleged crimes committed by occupants of the White House without fear of being fired and would improve the public’s level of confidence in the fairness of the legal system.

Joel Joseph is author of Black Mondays: Worst Decisions of the Supreme Court and was counsel to the Special Prosecutor Project in the 1970s that sought special prosecutors to investigate the Nixon and Agnew cases. He is chairman of the Made in the USA Foundation, a non-profit organization dedicated to promoting American-made products. Email joeldjoseph@gmail.com.

From The Progressive Populist, June 1, 2018

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