First there's the question of just who you should trust.
This fellow might do - University of Oregon School of Law - Garrett Epps -
Garrett Epps, a former staff writer for the Washington Post, is also the author of two novels. He has written for the New York Times, the New Republic, and the New York Review of Books, and served as articles editor of Law and Contemporary Problems. His most recent book is Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America (2006). It was one of three finalists for the American Bar Association Silver Gavel Award in 2002. He has been a visiting associate professor at Boston College of Law and Duke Law School. Epps joined the faculty after a clerkship with the Honorable John O. Butzner Jr. of the Fourth Circuit Court of Appeals in Virginia.
One should never fully trust Wikipedia, the free encyclopedia, but they add this -
Epps was born in Richmond, Virginia, and attended St. Christopher's School and Harvard College, where he was the President of The Harvard Crimson. He later received an M.A. in Creative Writing from Hollins University, and a law degree from Duke University.
Those of us who did our graduate work at Duke raise an eyebrow here. That law school also produced Richard Nixon and Angela Davis. We all got a good laugh out of that way back when. But it has a reputation. The US News and World Report Law School Rankings has Duke at number eleven. Not bad.
Wikipedia also gives us the man's four books -
One might assume the man is a bit of a liberal - except these days, out of fear, they now call themselves "progressives." But he still might know some things.
And in a SALON item on March 9, he makes an odd argument. That would be Why We Should Elect Our Attorney General.
We should? We have the lowest voter turn-out in the western world. No one would stand for another something to think about on the ballot, especially out here California where we get fifteen or twenty referendums each November - matters the legislature cannot or will not decide. We have to do their work for them (and of course pay them to throw up their hands and ask us all to decide this or that). The referendum business out here is either wonderful direct democracy, or buck-passing foolishness.
Still, Garrett Epps seems to be saying we really should make Attorney General an elective office. This is a Watergate sort of thing - "the unfolding US attorneys scandal proves that it's dangerous for the nation's chief law enforcement officer to be an appointed crony of the president."
But that is the tradition. Why mess with it?
This account of the purge of US attorneys shows why -
Ever since the Bush administration shocked the legal community by dismissing eight U.S. attorneys in December, Justice Department leaders have vigorously denied that the firings were politically motivated. "I would never, ever make a change in the United States attorney position for political reasons," Attorney General Alberto Gonzales said in Senate testimony in early January. In a Feb. 6 hearing, Deputy Attorney General Paul McNulty told lawmakers, "When I hear you talk about the politicizing of the Department of Justice, it's like a knife in my heart."
But at least three of the eight fired attorneys were told by a superior they were being forced to resign to make jobs available for other Bush appointees, according to a former senior Justice Department official knowledgeable about their cases. That stands in contradiction to administration claims that the firings were related either to job performance or policy differences. A fourth U.S. attorney was told by a top Justice Department official that the dismissal in that attorney's case was not necessarily related to job performance. Meanwhile, U.S. Attorney David Iglesias in New Mexico - who officially steps down from his post on Wednesday, and who says he was never told by superiors about any problems with his work - plans to go public with documentation of the achievements of his office.
"I never received any indication at all of a problem" regarding performance or policy differences, Iglesias told Salon on Monday. "That only leaves a third option: politics."
… Suspicions about the unusual purge of eight U.S. attorneys in December exploded into the open across the legal community and on Capitol Hill after McNulty conceded in Senate testimony on Feb. 6 that the U.S. attorney in Arkansas, Bud Cummins, was pushed out for no reason other than to give someone else a shot at the job. Using a little-noticed provision in the Patriot Act allowing interim appointments, Gonzales gave the post to Timothy Griffin - who had been both an operative for the Republican National Committee and a deputy to senior White House advisor Karl Rove - in what many believe was a maneuver to sidestep the traditional Senate confirmation process for U.S. attorneys.
More recently, U.S. attorney Carol Lam, who is best known for nailing corrupt Republican Rep. Randy "Duke" Cunningham and his partners in crime, was replaced on Feb. 15 by Karen P. Hewitt, who according to a Justice Department press release, "will serve on an interim basis until a United States Attorney is nominated by the president and confirmed by the Senate." According to an Op-Ed in Monday's New York Times, Hewitt has a résumé with "almost no criminal law experience" and is a member of the Federalist Society, a conservative legal group.
That's the way things go. Your job is to go after the bad guys. Go after the wrong ones and you're toast. You'll be replaced by someone who knows better.
It's not like other administrations haven't done such things. This is just a bit extreme - six tossed out in one day, and that provision slipped into the Patriot Act no one noticed at the time, making sure none of the new people have to be confirmed at all - no one is now allowed to review qualifications and ask questions in any silly confirmation hearing. It is efficient after all. And Karl Rove's opinion researcher gets one of the slots. Ha, ha - the joke is on you, or on us all.
To be fair, the attorney general has now said that if congress wants to amend the Patriot Act and remove that "no questions" business, the White House will not oppose the change back to the way it used to be. It is fairly obvious that they got what they wanted and won't try this again.
And that somehow reminds Garrett Epps of a particular moment during the debates in Philadelphia that framed the Constitution. It seems that on June 1, 1787, James Wilson of Pennsylvania formally moved that the executive power be placed in a single individual -
The room fell silent, and the silence lasted long enough that the chairman finally asked whether the group wanted to move on to a vote. Only then did Benjamin Franklin speak up and urge his colleagues to discuss the question, and the Constitutional Convention began a long-running debate over the contours of the office that would become the presidency.
Madison's selective and bare-boned "Notes" of the debates provide no explanation for the dead air that greeted the single-executive motion. But it doesn't require a vivid historical imagination to put that awkward pause down to the fact that everyone in the room knew that George Washington, the nation's greatest hero and the presiding officer of the convention, would certainly be the first chief executive under any new system.
The problem is easy to see - Washington was the man, as we would say these days - and no one was going to suggest that the entire executive power should not be lodged in that specific one person. He was the hero, the father of the country. He beat the British. He was it.
But then there were other considerations -
… there were also good reasons to question the single-executive plan. It smacked of the British crown. And so throughout the rest of the convention, the delegates struggled to come up with a plan to dilute the authority the president would hold.
The delegates toyed with surrounding the president with a Council of State, such as some of the states had, to approve major measures. That failed - to the disgust of Virginia's George Mason, who declined to endorse the Constitution in part because the president would be "generally directed by minions and favorites." In the end, the convention voted to give "advice and consent" power to the Senate, in the hope the Senate would share in, and temper, the president's decision making.
Well, that didn't exactly work out, did it? As Epps notes, in the following two hundred or more years "the executive branch of our government has been expanding its reach with little interruption" and now "the president commands a vast economic, political, legal, military and national-security apparatus, with no check on his decisions except the often feckless oversight of Congress."
Feckless oversight? It would be feckless if there were any oversight at all.
The current scandal with the purge of the attorneys then seems to come from the 1787 James Wilson question -
Officials in the White House managed to sneak into the Patriot Act a provision allowing the president to appoint interim U.S. attorneys without congressional confirmation. Republican partisans on the Hill and elsewhere then apparently began to scour the country for those prosecutors whom they deemed insufficiently zealous in criminalizing the Democratic opposition. Soon, the attorney general of the United States - George Bush's crony - began to remove these independent figures and replace them with more compliant prosecutors. The result looks a lot like a systematic attempt to corrupt the federal justice system for short-term political gain.
It short, this was predictable, and made possible because, under our Constitution, the attorney general is a presidential appointee. Yeah, yeah - the Senate must confirm any attorney general, and they did confirm Alberto Gonzales. But the Senate's use of its "advice and consent" power is always tempered by a bit of courtesy, or odd "give the guy a chance" thinking. Everyone says that a president has the right to install "his choice" in that position. The man (or woman) may set legal policy for the United States, and head "the massive federal law-enforcement apparatus," but if he's not a child-molester or drunk, or a convicted felon, you're supposed to back off. The people elected the president to run things, and you don't start off second-guessing him. He should be allowed to pick his team, unless any given choice is so obviously crazy that there's a danger that awful things will happen. A law degree, no felony record and an ability to speak coherently will do - otherwise "the benefit of the doubt" is in play.
And how has that worked out with previous attorneys general?
Epps reminds us -
Two of Nixon's attorneys general were convicted of Watergate-related crimes. Edwin Meese, Reagan's attorney general, was assiduous in seeking to impose political conformity on the federal judiciary. Clinton's early Justice Department was compromised by the presence of Webb Hubbell, crony extraordinaire. And Bush's appointees throughout the Department of Justice have been eager to further any hare-brained scheme hatched by the president or by Vice President Cheney.
That's not pretty, and "a lot of power to trust to someone whose loyalty is to another elected official." It seems some traditions are better than others, and courtesy can get us in trouble.
And there's more -
In that connection, consider the damage done because the DOJ's Office of Legal Counsel came under the control of political appointees. OLC is supposed to be the executive branch's source of disinterested legal advice. When the president wishes to take an unprecedented action, the skilled lawyers at OLC provide him with an opinion as to whether the plan is legal. But in the 9/11 crisis, the office was staffed by political lickspittles, who fell all over themselves advising the president that he could detain and torture anyone he wanted, at any time, regardless of domestic law and international treaties.
Well, it worked. He got what he wanted.
Epps just wants to point out that the office of the attorney general is "different in kind" from the other cabinet posts. We're not talking secretary of the interior here. The other cabinet officials act as extensions of the president. The nation's chief law-enforcement officer should be other thing entirely. He's supposed to answer to the law, and perhaps say unwelcome things, and not answer to the president - so maybe he should be elected.
Would that work? Epps notes that forty-three states have elected attorneys general. In two others states the attorney general is named by either the legislature or the courts. Only five states have a system where the governor appoints the attorney general and tells everyone to stuff it if they don't like the guy. The idea of an election for the position is so far out.
Epps has this idea that the national candidates for attorney general could run for office during midterm elections rather than in presidential years - to ensure "an election that would be more about the candidates themselves than the strength of presidential coattails" -
And the next time a White House advisor wanted to oust prosecutors for partisan aims, or secure a legal-sounding blank check for lawless executive action, he or she would have to call across town to an attorney general who had an independent constitutional role and who could not be fired for refusing to toe the administration line. The lawyers at OLC would be appointed by the attorney general and would not be toadies of the president; their responsibility would be, as it should be, to the integrity of the law and the Constitution. Does anyone believe that such lawyers would have given the go-ahead to the NSA warrantless surveillance program?
Yep, and that's why this would never happen.
And there are caveats -
After all, elected AGs are politicians, with their own agendas. Sometimes that's great - think of the determined crusade of Eliot Spitzer of New York to clean up corporate governance. Sometimes it's bad - think of Phill Kline, the Kansas attorney general who seized the medical records of women who had abortions and later discussed them with Bill O'Reilly on television.
Yep, the voters can choose some duds.
But there are checks and balances, as appointed attorneys general would be politicians too -
It's just that they only have to cater to an electorate of one. Popular election would place accountability in the hands of the people. Kline paid for his bad behavior with a landslide defeat by Kansas voters last fall. Spitzer was rewarded for his good behavior with the governorship of New York. And if an elected AG gets up to mischief, he or she would be aware that officials of the executive branch were nearby to monitor the Justice Department.
Hey, this could work!
And it would change things - "Would this also dilute the president's authority, in the way some of the founders in Philadelphia were hoping to do two centuries ago? In a word, yes. It would make it harder for presidents to take impulsive or secretive legal action."
Some think that would be a good thing. Others might not. What's the point of having power if someone is always stopping you from doing what you want?
That takes us back to 1787 and that question that shut everyone up. What do what we want?
Epps argues that checks on power are what the Constitution is actually about. The framers set up Congress as a check on the president, the courts as a check on the Congress - and even the House and Senate as checks on each other. That seems to have been the idea - "to ensure that government used its huge powers only after deliberation, and not in the service of individual agendas."
That's no fun, but that's what they did.
And we get Madison in "Federalist No. 51." - "Ambition must be made to counteract ambition. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and it in the next place oblige it to control itself."
People with ambition would oppose what Epps proposes, of course. He just thinks we ought to "clearly show respect to the framers by helping perfect the structure they designed."
So an elected attorney general would be "an important new check, one in keeping with the best of the system we have."
It'll never happen. No one gives up power.
It is an interesting idea though.
A reader comment from Rick, the News Guy in Atlanta -
Yes, electing our Attorneys General is an interesting idea, but one that faces at least two large obstacles that I can think of, at least off the top of my head.
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Last updated Saturday, March 10, 2007, 10:30 pm Pacific Time
All text and photos, unless otherwise noted, Copyright © 2003, 2004, 2005, 2006, 2007 - Alan M. Pavlik