Volume 36

The Independent Attorney General: An Analysis of Why the Office Should be Insulated from Presidential Political Imperatives

by Andrew Nisco

The Office of the Attorney General, created during the First Congress, has become one of the most recognizable administrative offices within the executive branch. A president’s pick to head the Department of Justice is one of the most consequential and scrutinized. However, the Department of Justice (DOJ), as we have come to know it, did not exist until 1870. For nearly one century, the Attorneys General had no authority over any district attorneys, had no employees working under them, and were themselves part-time employees. Until 1870, the authority and powers the Attorney General could exercise were the subject of much debate. But even after the creation of the DOJ, there is still a shocking amount of uncertainty as it pertains to the Department’s responsiveness to the executive because the Attorney General (AG) is a prominent member of any president’s cabinet.

When compared to the other agencies created in the First Congress–the Department of Foreign Affairs, the Department of War, and the Department of Treasury–the Office of the Attorney General received far less consideration in clearly outlining the role and the powers of the Attorney General. Since 1789, Congress has been notably silent over the president’s ability to exert control over the Attorney General, leading to much confusion among scholars, judges, and even the officeholders, about how responsive the AG is to the political whims of the president.

Today, the legitimacy of the Department of Justice is of great concern as political-in-nature investigations are increasing. Former President Trump tested the limits of a president’s ability to exert control over federal prosecutors as he fired or forced the resignation of numerous high-ranking DOJ officials, and the DOJ was consistently in his crosshairs. Additionally, the Justice Department was one of the executive administrative agencies that former President Trump attempted to weaponize to overturn the 2020 election. An analysis of President Trump’s incessant attacks on the DOJ will show that whatever independence remains is from the reliance on federal prosecutors’ ability to utilize norms and internal DOJ regulations to maintain independence. However, with no explicit codification of these norms, how much pressure from a president can we expect the customs to withstand?

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