Academic journal article Notre Dame Law Review

Who Is the Attorney General's Client?

Academic journal article Notre Dame Law Review

Who Is the Attorney General's Client?

Article excerpt

Two consecutive presidential administrations have been beset with controversies surrounding decision making in the Department of Justice, frequently arising from issues relating to the war on terrorism, but generally giving rise to accusations that the work of the Department is being unduly politicized. Much recent academic commentary has been devoted to analyzing and, typically, defending various more or less robust versions of "independence" in the Department generally and in the Attorney General in particular. This Article builds from the Supreme Court's recent decision in Free Enterprise Fund v. Public Co. Accounting Oversight Board, in which the Court set forth key principles relating to the role of the President in seeing to it that the laws are faithfully executed. This Article draws upon these principles to construct a model for understanding the Attorney General's role. Focusing on the question, "Who is the Attorney General's client?", the Article presumes that in the most important sense the American people are the Attorney General's client. The Article argues, however, that that client relationship is necessarily a mediated one, with the most important mediating force being the elected head of the executive branch, the President. The argument invokes historical considerations, epistemic concerns, and constitutional structure. Against a trend in recent commentary defending a robustly independent model of executive branch lawyering rooted in the putative ability and obligation of executive branch lawyers to alight upon a "best view" of the law thought to have binding force even over plausible alternatives, the Article defends as legitimate and necessary a greater degree of presidential direction in the setting of legal policy. This position is defended in terms of democratic accountability, epistemic humility in the face of the indeterminacy of law, and historical practice.

INTRODUCTION

The current and previous presidential administrations have served us no end of political-legal controversies, from torture memos penned early in the war against Al Qaeda and its allies, to whether to try Guantanamo detainees before civilian or military tribunals, to how the President ought to be advised about the constitutionality of laws by the Attorney General and the Department of Justice (DOJ). Any number of controversies plucked from the headlines of the last several years of reporting and commentary on the moral, political, and legal challenges inherent in the war against international terrorism refer to episodes that have vexed the United States government generally, and the executive branch in particular, as it struggles to find a way forward in what is frequently uncharted legal terrain. This Article will focus upon the Office of the Attorney General and in particular on the proper understanding of the role of the Attorney General of the United States in serving the President and the American people. Although there is a rich and complicated moral and political context in which these legal questions are situated, for the most part such considerations will operate in the background as we explore the contours of the duties of the Attorney General as a lawyer first and foremost. (1)

I will offer a model of understanding the responsibility and accountability of the Attorney General that I hope can be extended to government lawyering more generally, including to lawyers serving in both the legislative and judicial branches of government. Specifically, I want to focus attention on the Attorney General as a lawyer working for a client--the American people. (2) The model I propose is that of a mediated client relationship. For if it is true--as in some sense it must be--that a lawyer who works for the United States works not for the President alone, nor for a Senator alone, nor for a Judge alone, but for the American people, it must be admitted nevertheless that such a description of the client relationship may raise more questions than it answers. …

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