The Attorney General (AG) of the United States occupies a unique and highly complex position at the intersection of law, politics, and governance. As the chief law enforcement officer and head of the Department of Justice (DOJ), the AG bears the responsibility for upholding the law while simultaneously navigating the political realities of serving under a president. This article explores the intricacies of the AG’s role, the historical contexts that have shaped the office, and the inherent tensions between maintaining independence and upholding executive priorities.
While the AG’s legal authority is broad, their influence extends far beyond prosecutorial decisions. By interpreting laws, shaping legal precedents, and influencing national legal policy, the Attorney General helps define the boundaries of constitutional authority. This powerful duality demands a balancing act that has often led to conflicts over the AG’s independence, the rule of law, and political accountability.
The Duality of the Attorney General: Law vs. Politics
The AG’s role is inherently dualistic, reflecting both legal obligations and political expectations. On one hand, the AG must serve the legal interests of the nation—upholding justice impartially, prosecuting federal crimes, and defending the Constitution. On the other hand, the AG serves at the pleasure of the president, a position that sometimes demands political loyalty and advocacy for presidential policies.
This dual role raises the question: Can an AG remain impartial while representing an administration with its own political agenda? History has shown that this is no easy task.
Historical Context: The Battle for Independence
While the AG’s independence has been heralded as an ideal, reality often presents a different story. Take the Watergate scandal as a key historical example: in 1973, President Richard Nixon ordered Attorney General Elliot Richardson to fire special prosecutor Archibald Cox, who was investigating the president’s involvement in the scandal. Richardson refused and resigned, marking one of the most famous moments of AG defiance. His decision to uphold legal ethics over presidential loyalty stands as a milestone in the battle for AG independence.
Contrast this with John Mitchell, Nixon’s first AG, who was later convicted of conspiracy, obstruction of justice, and perjury for his role in the Watergate cover-up. Mitchell’s conduct illustrates how the AG’s role can also be manipulated to serve personal or political ends, demonstrating the thin line between ethical duty and political expediency.
Over time, these contrasting examples helped define the public’s perception of the AG as either a staunch defender of the rule of law or a political figure beholden to the president.
The Attorney General’s Role in Shaping Legal Precedents
Beyond political loyalty, the AG has the power to shape national legal policy and constitutional interpretation, often making decisions that leave a lasting imprint on the nation’s laws. This occurs through various mechanisms, including prosecutorial discretion and advisory opinions issued by the DOJ’s Office of Legal Counsel (OLC).
For example, following the 9/11 attacks, the George W. Bush administration, under AG John Ashcroft and his successor Alberto Gonzales, drastically expanded the DOJ’s authority in areas like surveillance, detainment, and interrogation. The infamous “Torture Memos” of 2002, drafted by the OLC, justified enhanced interrogation techniques such as waterboarding, fundamentally altering U.S. legal standards regarding torture. The legal precedents set during this time redefined executive authority, showing how the AG can expand the president’s power during times of crisis.
On the other hand, AG Robert F. Kennedy’s aggressive enforcement of civil rights laws during the 1960s is an example of how the AG can shift legal precedents in ways that protect individual rights. Kennedy, a fierce advocate for desegregation, used federal authority to challenge Southern states’ segregationist policies. By pushing the boundaries of federal power, Kennedy’s DOJ played a key role in enforcing the Civil Rights Act of 1964 and the Voting Rights Act of 1965, leaving a legacy that still shapes civil rights law today.
The AG’s Use of Prosecutorial Discretion: The Power to Prioritize
The AG’s role isn’t just about interpreting and enforcing existing laws—it’s about determining which laws to prioritize. Prosecutorial discretion allows the AG to decide where DOJ resources will be focused. This power can be used strategically to influence national policy without the need for legislation, by focusing on some crimes while de-emphasizing others.
During the Reagan administration, AG Edwin Meese III used prosecutorial discretion to focus DOJ efforts on issues like obscenity and pornography, prioritizing conservative social values. Meanwhile, civil rights enforcement was de-emphasized, and voting rights protections saw fewer prosecutions. Meese’s selective enforcement strategy demonstrated how an AG could subtly shift social policy through discretion, impacting areas like civil liberties and social justice without needing new laws to be passed.
Similarly, under AG Jeff Sessions, during the Trump administration, prosecutorial discretion was employed to crack down on nonviolent drug offenders, reversing Obama-era policies that had sought to avoid mandatory minimum sentences in such cases. This return to “tough on crime” policies reflected the AG’s ability to shape criminal justice outcomes without legislative approval, a power that critics argue disproportionately affected marginalized communities.
On the flip side, AGs like Eric Holder, who served under President Obama, used discretion to de-prioritize certain federal drug laws, paving the way for the decriminalization of marijuana in states like Colorado and Washington. Holder’s decisions signaled a shift in how the DOJ viewed low-level drug offenses, reflecting a broader trend towards criminal justice reform.
The Attorney General in the Age of Polarization
In today’s deeply polarized political climate, the role of the AG is perhaps more fraught than ever. AG Merrick Garland, appointed by President Joe Biden, faces intense scrutiny over his handling of politically sensitive cases, such as those related to the January 6 Capitol insurrection and the investigations into Donald Trump’s handling of classified documents.
Garland’s tenure highlights the challenge of leading the DOJ during a time when any significant legal action, particularly one involving high-profile political figures, is seen by some as politically motivated and by others as a necessary defense of democracy. In such a polarized environment, even the appearance of impartiality is difficult to maintain.
Garland’s approach has been one of measured caution. Yet, both sides of the political spectrum have found reason for criticism. While Democrats have called for a more aggressive pursuit of Trump-related cases, Republicans have accused Garland of partisanship. The AG, in this era of political division, is no longer seen merely as a neutral arbiter of the law but as a political actor—willingly or not—caught in the crosshairs of larger ideological battles.
Practical Implications: The Role of the AG in Civil Rights, National Security, and Criminal Justice
Understanding the AG’s role is essential for citizens seeking to comprehend how national policies are enforced and contested. Here’s what people can expect in practical terms:
- Civil Rights: The AG has historically played a major role in enforcing and expanding civil rights protections, as seen during the Kennedy and Johnson administrations. Today, issues like voting rights, police reform, and protections for LGBTQ+ individuals continue to be shaped by DOJ priorities.
- National Security: Post-9/11, the AG has also had significant power to influence policies around national security, including surveillance, counterterrorism efforts, and the balance between civil liberties and security measures.
- Criminal Justice Reform: The AG can influence the direction of criminal justice reform, either by pursuing harsh punitive measures, as seen under AG Sessions, or by supporting reforms that de-emphasize incarceration, as seen under AG Holder.
When citizens engage with these areas—whether through advocacy, voting, or legal action—it’s important to understand the discretion the AG wields and how their policy choices affect everyday legal outcomes.
FAQs
1. What is the primary duty of the Attorney General?
The Attorney General is responsible for overseeing the U.S. Department of Justice and serving as the chief law enforcement officer for the federal government. Their duties include prosecuting federal crimes, defending the United States in legal matters, and advising the president on legal issues.
2. How does the Attorney General influence national legal policy?
The AG influences national legal policy through legal interpretations, advisory opinions from the Office of Legal Counsel, prosecutorial discretion, and DOJ enforcement priorities. These tools allow the AG to shape how laws are applied, sometimes creating de facto changes in national policy.
3. Can the Attorney General be independent of the president?
While the AG is appointed by the president and is part of the executive branch, they are expected to uphold the law impartially. However, the degree of independence often fluctuates depending on the AG’s relationship with the president and the political climate.
4. What is prosecutorial discretion, and why is it important?
Prosecutorial discretion refers to the AG’s authority to decide which cases and issues to prioritize in terms of enforcement. This discretion allows the AG to focus DOJ resources on specific areas, such as civil rights or national security, while downplaying others.
5. Has the AG ever refused a president’s order?
Yes. One of the most famous examples is the “Saturday Night Massacre” during the Watergate scandal, where AG Elliot Richardson refused President Nixon’s order to fire special prosecutor Archibald Cox, choosing to resign instead.
6. How does the AG’s office interact with national security concerns?
The AG has significant influence over national security policy, particularly in shaping how surveillance, counterterrorism, and detention policies are implemented. This was especially evident after 9/11, when the DOJ expanded its powers under the USA PATRIOT Act and other measures.
7. How does the AG affect civil rights enforcement?
The AG can choose to prioritize or de-prioritize civil rights cases. For instance, AG
s like Robert F. Kennedy played a critical role in enforcing desegregation laws, while others, like Edwin Meese, focused more on conservative social issues, leaving civil rights enforcement to take a back seat.
Conclusion
The role of the U.S. Attorney General is a pivotal one in both shaping and interpreting the law. From enforcing civil rights legislation to defining the limits of executive power, the AG’s actions leave lasting marks on the nation’s legal landscape. Through prosecutorial discretion and legal interpretations, the AG can influence social, political, and economic issues in ways that extend far beyond the courtroom. As the complexities of law and politics continue to evolve, the AG remains a central figure in determining how justice is served, and to whom.
