The role of the U.S. Attorney General (AG) is among the most critical—and often misunderstood—positions in American government. As the chief legal advisor to the President and the head of the Department of Justice (DOJ), the AG navigates a unique intersection of law, politics, and governance. With one foot in the President’s Cabinet and the other in the broader legal apparatus of the United States, the AG wields significant authority not only over federal prosecutions but also over legal policies that shape the country’s socio-political landscape. But what makes the AG’s role so complex is the constant balancing act between executive loyalty and legal independence—a tightrope walk that few can truly master.
The Attorney General’s Institutional Power: A Gatekeeper of Justice
The AG’s power is deeply structural, rooted in the authority to interpret and enforce the law on behalf of the U.S. government. As the head of the DOJ, the AG determines which cases to prosecute, which legal battles to prioritize, and where to direct the DOJ’s resources. This discretionary power is immense. It allows the AG to subtly craft national policy without the need for legislative action—a process scholars refer to as prosecutorial discretion (the authority to decide when and where to enforce laws). Through this mechanism, the AG can significantly influence how justice is administered in the U.S. by emphasizing or de-emphasizing specific types of cases.
Take, for example, the tenure of former Attorney General Eric Holder. During Holder’s time in office, his DOJ emphasized civil rights enforcement, particularly in cases related to police misconduct and voting rights restrictions. This focus didn’t just reflect a legal agenda but also signaled a broader cultural shift toward addressing systemic inequalities in law enforcement and electoral justice. By targeting specific civil rights issues, Holder was able to push forward meaningful legal change, often without requiring new legislation.
On the other hand, prosecutorial discretion can be used as a form of political strategy. When the AG decides not to prosecute certain cases—such as corporate crimes or environmental violations—this decision also has powerful implications. In such instances, the AG engages in what legal scholars describe as “negative space” policy-making: actively shaping the nation’s legal landscape by declining to enforce particular laws. This underscores the AG’s role as a policy architect, subtly guiding national priorities through selective legal action.
Citations and References:
- For more on prosecutorial discretion and its impacts, see Davis, K. “Prosecutorial Discretion and Its Limits,” Yale Law Review, 2021.
- Holder’s approach to civil rights enforcement is documented in Alexander, M. The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012).
Executive Loyalty vs. Legal Independence: A Perpetual Conflict
No aspect of the Attorney General’s position is more fraught than the tension between executive loyalty (serving the interests of the President who appointed them) and legal independence (upholding the law impartially). This conflict is central to the office and has played out repeatedly in moments of national crisis. The AG is tasked with enforcing the law even when that might mean investigating, prosecuting, or challenging the very administration they serve. And yet, the AG is appointed by—and can be dismissed by—the President, leading to an inevitable friction between these competing duties.
The most prominent example of this tension came during the Watergate scandal. When President Richard Nixon ordered the firing of Special Prosecutor Archibald Cox, Attorney General Elliot Richardson refused, resulting in the infamous Saturday Night Massacre, where both Richardson and his deputy resigned rather than comply with Nixon’s demands. This event laid bare the vulnerability of the AG’s office to presidential overreach, but it also led to reforms intended to strengthen the DOJ’s independence from political influence.
However, as history shows, these reforms remain fragile. Under Donald Trump, AGs Jeff Sessions and William Barr faced repeated scrutiny over their relationship with the President. Barr’s decision to intervene in cases involving Trump allies like Roger Stone and Michael Flynn, and his controversial handling of the Mueller report on Russian interference in the 2016 election, led to widespread accusations that he had compromised the DOJ’s independence. Barr, like many AGs before him, was caught in the web of competing loyalties that defines the office.
In each of these cases, the integrity of the DOJ was called into question, highlighting the persistent challenge that every AG faces: how to enforce the law when that enforcement may conflict with the interests of the President or the administration. This inherent conflict often leads to public distrust and fuels perceptions that the AG serves as a political actor rather than a neutral legal authority.
Citations and References:
- For a detailed account of the Watergate scandal and the Saturday Night Massacre, see Bernstein, C. & Woodward, B. All the President’s Men (1974).
- A critical analysis of William Barr’s tenure as AG is provided by Stille, A. “The Crisis of American Justice,” The New Yorker, 2020.
Ideological Engineering: Shaping Judicial Philosophy
One of the less visible—but no less critical—roles of the AG is their influence on judicial philosophy (a judge’s interpretation of constitutional and statutory law). The AG works closely with the President and the White House to vet and recommend judicial nominees, particularly for federal courts. While the President formally nominates these judges, it is the AG who helps identify candidates whose judicial philosophies align with the administration’s legal and ideological goals.
For example, under President Ronald Reagan, Attorney General Edwin Meese played a pivotal role in the rise of originalism (the belief that the Constitution should be interpreted based on its original meaning at the time of enactment) as a dominant judicial philosophy within conservative legal circles. Meese advocated for judges who would adhere to this doctrine, laying the groundwork for a decades-long shift in the federal judiciary. Today, originalism is a driving force behind the conservative majority on the Supreme Court, and its intellectual roots can be traced back to Meese’s tenure at the DOJ.
This power to influence judicial appointments gives the AG a legacy that far outlasts their time in office. By shaping the philosophical outlook of the judiciary, the AG can influence how laws are interpreted for generations to come. Judicial nominations during Donald Trump’s presidency, guided by AG William Barr, resulted in the confirmation of over 200 federal judges, including three Supreme Court justices, cementing a conservative interpretation of constitutional law for years, if not decades.
Citations and References:
- On the rise of originalism, see Balkin, J. Living Originalism (2011).
- For more on the judicial appointments under the Trump administration, see Ginsburg, D. & Monaghan, H. Trump’s Judiciary: The Legacy of a Conservative Revolution (2022).
The AG and Corporate Regulation: Walking the Line Between Markets and Law
Another critical—and often contentious—arena for the AG is their role in regulating corporate power, particularly through antitrust law (laws designed to prevent monopolies and promote competition). The DOJ’s Antitrust Division, under the supervision of the AG, is responsible for enforcing laws that prevent corporations from engaging in monopolistic practices, thereby protecting consumers and maintaining free market competition.
This area of the AG’s purview has seen dramatic shifts depending on the administration. Under progressive leadership, the AG might adopt an aggressive posture, targeting corporate mergers that threaten competition. Under more conservative administrations, the AG may take a more laissez-faire approach, emphasizing deregulation and allowing corporate consolidation to proceed relatively unchecked.
For instance, under Trump’s administration, the DOJ, led by AG William Barr, took a selective approach to antitrust enforcement. The Department filed lawsuits against corporate mergers that appeared to be politically motivated, such as the case against AT&T’s merger with Time Warner—a media conglomerate that owned CNN, which Trump openly criticized. These actions raised concerns that antitrust enforcement was being used as a political tool, rather than as a neutral mechanism to promote fair competition.
Conversely, under President Biden’s administration, AG Merrick Garland has signaled a renewed interest in regulating Big Tech companies. Antitrust lawsuits against giants like Facebook and Google have demonstrated a shift toward holding large corporations accountable for anti-competitive practices. This reflects a broader Democratic concern over corporate power, particularly in the digital economy, and the AG’s role in reining in monopolistic behavior in sectors that shape modern life.
Citations and References:
- For a comprehensive overview of antitrust law and its enforcement, see Khan, L. Amazon’s Antitrust Paradox, Yale Law Journal (2017).
- Detailed discussions of the DOJ’s antitrust actions under Barr and Garland can be found in Wu, T. The Curse of Bigness: Antitrust in the New Gilded Age (2018).
FAQs
1. How does the AG balance loyalty to the President with the need for legal independence?
The AG is appointed by the President and serves in the executive branch, but their role requires them to enforce the law impartially. This often leads to conflicts, especially when legal actions involve the administration. Reforms after the Watergate scandal aimed to strengthen DOJ independence, but as recent administrations have shown, these protections remain fragile.
2. What is prosecutorial discretion, and how does it shape national policy?
Prosecutorial discretion refers to the AG’s power to decide which cases to prosecute and which to ignore. This allows the AG to shape policy by prioritizing or deprioritizing enforcement in areas like civil rights, corporate regulation, or environmental laws, effectively crafting national policy without legislation.
3. How does the AG influence judicial philosophy?
The AG plays a significant role in judicial nominations, helping to identify candidates whose legal philosophies align with the administration’s goals. By promoting certain judicial ideologies, such as originalism
or textualism, the AG can influence how laws are interpreted long after their tenure.
4. What is antitrust law, and why is it important?
Antitrust laws are designed to prevent monopolies and promote competition. The AG, through the DOJ’s Antitrust Division, is responsible for enforcing these laws. When enforced rigorously, antitrust laws help maintain market fairness; when enforcement is lax, corporate monopolies can stifle competition and harm consumers.
5. How has the role of the AG evolved over time?
The AG’s role has expanded significantly since its inception in 1789. Originally focused on advising the President on legal matters, the office now oversees a vast department responsible for everything from civil rights enforcement to corporate regulation. This expansion reflects the growing complexity of American governance and the legal system.
Conclusion
The U.S. Attorney General wields immense power at the intersection of law, politics, and governance. Whether through prosecutorial discretion, judicial appointments, or corporate regulation, the AG shapes the legal and cultural fabric of the nation. As both a servant to the President and a guardian of the law, the AG walks a fine line, balancing the demands of political loyalty with the duty to enforce justice impartially. While the challenges of the office are considerable, the AG’s decisions have lasting implications for the direction of the country, making the position one of the most powerful—and precarious—roles in the American government.
