Wednesday, September 20, 2017

Does the President Have the Right to Expect Loyalty from His Attorney General?

by Alan M. Dershowitz • September 20, 2017 at 11:00 am

Under our constitutional structure there is no perfect cure for the mistake made by our founders in merging the two incompatible goals of the current Attorney General: that of political advisor to the president; and that of independent chief prosecutor.
We are one of the few western democracies that mistakenly merged these roles into one. Our Attorney General is supposed to both advise the president politically... But at the same time, the Attorney General is supposed to be the head law enforcement officer of the United States – the chief prosecutor.
The system should be changed. The Justice Department should be broken up into two completely separate agencies, with two separate heads: the Minister of Justice would be a loyal political advisor to the president and a member of his cabinet; and the Director of Public Prosecution would be completely independent, and not a member of the cabinet. This separation will not be easy to achieve. But it may be possible, without a constitutional amendment, if Congress and the courts have the will to do it.

US Constitution (Image source: Jonathan Thorne/Flickr)

Recent news reports describe the President chastising his Attorney General Jeff Sessions for disloyalty. According to the New York Times, after learning that a special counsel had been appointed, President Trump accused Sessions of "disloyalty." Critics insist that the President has the right to demand loyalty of every other member of his cabinet but not of the Attorney General The Attorney General is different, these critics insist, because he is the chief law enforcement officer of the United States. The Atlantic's David A. Graham, for example, criticized Trump's demand for unconditional "loyalty," saying that, "for Trump, there is only one loyalty: to the president himself. When his aides and staffers make the mistake of following any other principle—rule of law, standard ethics policies, U.S. alliances—that might conflict with the principle of loyalty to Trump, the president becomes enraged."