Time to let the American people elect the US attorney general

For 11 years, I served as a prosecutor and supervisory attorney in the criminal division of the U.S. Department of Justice. I made my bones at the DOJ as a prosecutor, before I was honored with appointment to the federal bench. During my time at the DOJ, through both Democratic and Republican administrations, I received nothing but unequivocal support for my work from my superiors, including the political appointees who ran the department. I am deeply grateful to have served at the DOJ, the nation’s law firm.

Unfortunately, under the present administration, the DOJ has become a demoralized and dysfunctional place, due to what I believe is a lack of honesty and integrity of Attorney General Jeff Sessions and the contempt shown to the nonpartisan lawyers of the department by an arrogant, self-centered, and possibly corrupt president.

{mosads}Within months of his confirmation as attorney general, it was discovered that Sessions had lied (he contends it wasn’t intentional) to Congress and on his federal employment forms regarding the number of contacts he had with Russian officials. Sessions’ dishonesty forced him to recuse himself from any investigations conducted by the DOJ of President Trump, his campaign, and White House staffers regarding their contacts with influential Russians.

However, it seems as though Sessions’ recusal from TrumpGate has increased his open supplication to the president. Sessions’ demonstrated obeisance to the president at the sake of his loyalty to DOJ officials in his charge showed when he left the Oval Office without objection in response to Trump’s instruction, to allow the president to directly ask then-FBI Director James Comey to back off investigating former National Security Adviser Michael Flynn.

Following that, Sessions said nothing when the president fired Comey. Sessions has continued his role as a silent witness to Trump’s attempt to trash the DOJ by assailing Deputy Attorney General Rod Rosenstein — a longtime public servant with a peerless record as a Justice Department lawyer — and Special Counsel Robert Mueller — a decorated Vietnam war veteran, accomplished prosecutor, former FBI Director, and Washington attorney.

Finally, Sessions was again silent when the president tweeted his criticism of Justice Department lawyers for enacting the second travel ban recently found invalid by two federal courts of appeals, even though it was the president — not the DOJ — who signed and issued that same travel ban. As a defender of the independence, integrity, and nonpartisan professionalism of the DOJ, Sessions has been less than useless.

Sadly, the recent actions of Trump and Sessions are not the first occasions partisan political pressures have undermined the DOJ’s integrity and independence. On Oct. 20, 1973, President Nixon ordered then-Attorney General Elliot Richardson and then-Deputy Attorney General William Ruckelshaus to fire the Watergate special prosecutor, Archibald Cox. Both men refused and resigned in protest. In the end, Nixon’s solicitor general, Robert Bork, did the president’s bidding and fired Cox.

Then, on March 10, 2004, George W. Bush’s White House counsel, Alberto Gonzales, and chief of staff, Andrew Card, barged into the intensive care hospital room of then-Attorney General John Ashcroft, to obtain Ashcroft’s signature on an order to extend the president’s domestic surveillance program. Ashcroft rose his head from his hospital bed and refused to sign the order. He was supported by then-Deputy Attorney General James Comey and then-FBI Director Robert Mueller, who had courageously rushed to Ashcroft’s side.

Enough is enough. The attorney general is head of the U.S. Department of Justice. He is not secretary of the “department of law.” He should be the nation’s shield against those in power who use their positions for corrupt purposes, who try to skirt the rule of law and who attempt to exceed the constitutional limitations of their offices. The attorney general should defend the nonpartisanship and professionalism of Justice Department lawyers as they speak truth to power.

It now appears the best way to ensure all this is to amend the Constitution and relevant statutes to provide for a separately elected, rather than presidentially appointed, attorney general. The attorney general would then be responsible directly to the American people, and, with the advice and consent of the Senate, would have the power to appoint the heads of the various DOJ components, including the FBI. His independent stewardship of the Justice Department would act as a counterweight to any abuse of power by the president or his political appointees, whether Democrats or Republicans.

Most of our states have independent, elected attorneys general who have done a good job of ensuring an independent approach to law enforcement. Supreme Court Justice Louis Brandeis, referred to the states as “laboratories of democracy.” Where the states have experimented so successfully, the federal government should follow suit.

It is high time that we make the attorney general the “people’s lawyer.” Only then will we truly ensure “liberty and justice for all.”

Bruce J. Einhorn is a retired federal judge who served 11 years as a prosecutor and attorney at the U.S. Department of Justice. He is now an adjunct professor at Pepperdine University School of Law and a visiting professor at University of Oxford. His views are his own and are not the views of the institutions with which he is affiliated.

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