Should The Department of Justice Be An “Independent Agency”?

On the one hand, Harvard prawf Cass Sunstein often raises interesting questions. On the other, his answers aren’t always as interesting. He’s done it again in an op-ed arguing that it might be time for the Attorney General to be independent of the President.

In view of the intensifying controversy over the politicization of the Department of Justice under Attorney General William Barr and its potential weaponization at the hands of President Trump, it is worth reviving a proposal that has not been seriously discussed since the Watergate era: Congress should transform the Justice Department into an independent agency, legally immunized from the president’s day-to-day control.

Yep, the syllogism is BACK!!!*

Even cooler is that it harkens back to an earlier time, when Watergate was the “thing” that had to be “fixed,” which is why “something must be done.” Between then and now, we’ve had six seven presidents and it wasn’t a problem, so something didn’t have to be done, but it was then, and it is again now, so something must be done. It would have been a terrible thing to do during the six seven intervening presidencies, but when it rears its ugly head as a problem, it morphs from outlier into focus and demands a fix. Well, at least as far as Cass Sunstein is concerned.

The best reason to make an agency independent is to reduce the likelihood that its decisions will be affected by political considerations or the president’s self-interest.

Sunstein offers a list of federal agencies that are independent of the Executive Branch, like the Federal Reserve Board. They all have a special features, that they are extremely narrow in authority, born of congressional regulatory need requiring some technical expertise, and their purpose bears no connection to the will of the people. One additional feature is that none of them are remotely like the Department of Justice, with expansive authority that is intended to reflect the priorities of the nation.

In fairness, Sunstein mentions the arguments against his, albeit to dismiss them.

But wouldn’t it be better? There are two objections.

The first involves accountability. There’s a reasonable argument that the priorities of the department, which oversees so many important questions of law and policy, should reflect the views of the American people and so the president, whom they elected.

No one elected the attorney general. Should he really be allowed to operate as an independent agent?

The scope of the attorney general’s purview is enormous, whether it’s the nature of crimes the DoJ chooses to prosecute, the position taken by the government on controversial issues of law, the new areas of “rights” it chooses to promote or enforce or the oversight of other elected governmental choices. The list goes on. And on. And on.

The mindset of the moment is that Trump is awful and Barr is doing his awful bidding. But what if the president was groovy, exactly the sort of person you adore, but AG who seemed good enough when appointed but turned out to be awful when he held the power to make lives miserable? Remember, Barr had been AG before, and he was considered sufficiently pedestrian then such that no one predicted he would be willing to play Trump’s tool.

Susntein’s second problem is whether the Constitution would allow it, but it’s a technical issue that doesn’t bear upon whether it’s a good idea, so who cares?

But these objections are not decisive. In many of the states, the attorney general is independent of the governor and the system seems to work well, or well enough.

Except when the AG is independent of the governor, it’s because the AG is elected. Glossing over that detail doesn’t help much.

But why would we want to consider making the AG independent of the presidency?

In the post-Watergate era, a reasonable balance has been struck. As a matter of established norms, both Republican and Democratic presidents have usually given the attorney general a great deal of room to maneuver, especially when it comes to criminal prosecutions and ongoing litigation. In other words, norms have done the work of law.

Under President Trump, those norms have come under severe pressure. If they collapse, there would be incalculable damage to both liberty and self-government.

There’s a disconnect hidden within this expression of the problem that is hard to see unless one chooses to be intentionally blind. Trump was elected president. He wasn’t elected under the mistaken notion that he was wise, fair and knowledgeable about the workings of a constitutional democracy. He was openly a vulgar, amoral ignoramus with no motivations beyond his own self-aggrandizement and self-enrichment. And yet, he was elected. We knew who he was when we elected him.

Our system has checks and balances when it comes to choosing individuals to exercise vast authority over the nation. We vote for the president. We vote for senators to confirm presidential cabinet appointments. The expectation is that these individuals will perform their function. When we hate the way they did so, we start to think that maybe our checks and balances need checks and balances, because how else can we prevent this thing that’s obviously awful from happening?

Sunstein is right that the attorney general’s use of his authority to appease the big guy and help presidential cronies is a gross violation of norms that should never happen. But is the answer making the person holding these awesomely power reins untouchable or electing officials who do their job better?

Making the AG and the DoJ independent of the Executive branch has the virtue of insulating it from politics. So what happens when Attorney General For An Untouchable Term of Years Ashcroft has the power to dictate American justice? While we may be outraged by the travails of the moment, we can fix them by doing a better job of being citizens. But if we tweak the edges, we are more likely to find that we’ve created a new monster that will do far more harm in the wrong hands than the problem we were trying to fix.

Remember, the alternative to bad isn’t necessarily good. It can always get worse. This would be worse.

*The syllogism:

Something must be done.
This is something.
This must be done.

14 thoughts on “Should The Department of Justice Be An “Independent Agency”?

  1. B. McLeod

    As aptly illustrated by the Weinstein trial, “independence” doesn’t take prosecutors out of politics.

    1. SHG Post author

      While the analogy is imperfect, as DoJ does more than just criminal matters, it’s similarly true of the current trend of progressive prosecutors. It’s not that they want politics out of law, but despicable politics. The different with Trump is that he handles this with the same incompetence as everything else, not that every president doesn’t appoint an AG he expects to do as he wishes.

  2. Tom Donahue

    AGs have frequently carried water for Presidents, the press only cares now because Trump is a Republican and Orange Man Bad. Anyone remember Holder’s stonewalling on Fast and Furious gunrunning into Mexico, or the DoJ refusal to defend the Defense of Marriage Act, or refusal to enforce immigration law (DACA)? Where were the cries for making DoJ an independent agency then?

  3. Will J Richardson

    On politics and your paragraph about “bad”, “good”, and “worse”.

    Harshaw: “Democracy’s greatest fault is that its leaders are likely to reflect the faults and virtues of their constituents—a depressingly low level, but what else can you expect? So take a look at Douglas and ponder that, in his ignorance, stupidity, and self-seeking, he much resembles his fellow Americans, including you and me . . . and that in fact he is a notch or two above the average. Then take a look at the man who will replace him if his government topples.”

    Caxton: “There’s precious little choice.”

    Harshaw: “There’s always a choice! This one is a choice between ‘bad’ and ‘worse’— which is a difference much more poignant than that between ‘good’ and ‘better.’”

    Heinlein, R.A., [Dialogue between Jubal Harshaw and Ben Caxton, [The Original Uncut] Stranger in a Strange Land (1991)

  4. John Barleycoen

    A footnote on syllogism, how K_e-W double L kewl is that?

    You are my “hero” esteemed one..

    No one does it better than you as far as informative and proactive warnings concerning the fuckery possibilities of wishful thinking, even brining the footnote when needed!

    Perhaps someone, out their within the protected guild/s needs to come up with some original thoughts about Twits or something, or something or another before standard fuckery mutates?

  5. Richard Kopf


    One wonders what President Kennedy and his brother Attorney General Robert Kennedy would have thought about Professor Sunstein’s proposal.

    According to a New York Times piece in 1963, “At least three district judges appointed on Attorney General Kennedy’s advice turned out to have strongly segregationist views on the bench: J. Robert Elliott of Georgia, E. Gordon West of Louisiana, Harold Cox of Mississippi.” After all, so the Times concluded, “Partisanship is a quality often ascribed to Mr. Kennedy. He makes no pretense as to lack of strong partisanship in political affairs.” Both brothers needed the Southern Democrats Senators and that, as they say, was that.

    As you implicitly, and rightly, point out, the job of the Attorney General is often partisan because law is often partisan.* The structure of our government would be radically changed if it were otherwise.

    All the best.


    *I use “partisan” in the sense of a policy preference.

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