Prosecution among Friends: Presidents, Attorneys General, and Executive Branch Wrongdoing

By David Alistair Yalof | Go to book overview

chapter 2
Legal Regimes, Attorneys General,
and Executive Accountability

The position of US attorney general, like that of many other chief law enforcement officers holding parallel positions in state governments, presents a contradiction of interests and purposes. As a presidential appointee and member of the cabinet, the attorney general plays a critical role in helping an administration formulate and implement legal policy in line with the president’s overall goals. The attorney general’s employment status within the federal government is unambiguous: as a cabinet-level executive officer and chief lawyer of the US government, he or she serves at the pleasure of the president of the United States, and can be removed by the chief executive at will.1 At the same time, as the nation’s chief law enforcement officer, the attorney general draws on his or her own independent base of power to act directly in the public’s best interest. Since it was first established by Congress in 1870, the Department of Justice has served attorneys general in discharging their duties, which include investigating and prosecuting violators of federal law. And rarely does the attorney general face more intense cross-pressures than when his or her office must exercise its investigative and prosecutorial powers against members of the executive branch.

The implications of this conflict are profound. Even the proper and careful pursuit of allegations against executive branch officials may prove embarrassing or politically damaging to the president whom the attorney general must serve. Just as problematic, the White House may reap partisan political gains if alleged wrongdoing occurred while the opposition party was in control, inviting just the opposite form of pressure on Justice Department officials. And when the wrongdoing hits particularly close to home, such as when some of those targeted reside within the FBI or the Justice Department, the conflict of interest is most acute. The appointment of a special prosecutor (whether someone from within the Justice Department or outside it) offers one way out of the dilemma, but it brings with it an additional set of headaches, including the specter of an unaccountable or “rogue” prosecutor with no competing

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