President Trump has fired several broadsides against Attorney General Jeff Sessions over the past few weeks, proclaiming that he wished he had never hired him in the first place. This president’s frequent outbursts regarding the nation’s “top cop” highlight a tension in our constitutional framework: The attorney general is both the president’s cabinet member and responsible for enforcing federal law.
Because no one is above the law (despite recent presidential assertions to the contrary), sometimes that means investigating the person at the top. And yet this cabinet official serves at the pleasure of the president. In what other context is it appropriate for a person to select his or her own investigator? And why should we continue to delegate that responsibility? The American people should choose their own enforcer of the law, separate and apart from the president, using a popular vote election for attorney general.
This proposal would require amending the Constitution. Article II, Section Two grants the president the power to appoint cabinet officials with the advice and consent of the Senate, and the president has appointed an attorney general of his choosing since George Washington’s elevation of Edmund Randolph to the position in 1789. There is, of course, no mechanism for creating an additional nationally elected office without amending the Constitution.
But the notion of an independently elected chief law enforcement officer is far from radical; it’s the norm. In 43 states, including Massachusetts, voters elect their attorney general in addition to the governor. Being independently elected gives an attorney general the freedom to investigate — and prosecute — corruption in the executive branch. Just ask elected Missouri Attorney General Josh Hawley, who investigated his fellow Republican, Governor Eric Greitens, after alleged improper use of a nonprofit fundraising list for campaign purposes. Greitens resigned earlier this month.
Massachusetts has a notable history with an independent attorney general. Boston-native Elliot Richardson was serving as President Richard Nixon’s attorney general in 1973. What’s now known as the “Saturday Night Massacre” began with Nixon ordering Richardson to fire the special prosecutor investigating the Watergate break-in. Richardson and his deputy resigned in protest rather than carry out the order, which was then executed by third-in-command (and ill-fated 1987 Supreme Court nominee) Robert Bork.
The most important Watergate reform, inspired by the Saturday Night Massacre, was allowed to lapse in 1999. The independent counsel law was used to investigate not only President Nixon, but also most of his successors. Many Republicans were never fans of the law, and many Democrats lost their enthusiasm after Kenneth Starr’s investigation of the Clinton administration. Although the attorney general can appoint special counsel — Robert Mueller serves in this capacity now — this power is not codified into law. If Mueller were to be fired, the reasons could be criminal, but the current mechanism allows for it.
The Trump legal team’s confidential memo to Mueller, published by The New York Times on June 2, lays out the terrifying argument that the president can fire anyone and everyone at the Department of Justice for whatever reason Trump sees fit.
A constitutional amendment is, by design, a rare event, but the last one ratified in 1992, the 27th Amendment, came as the result of a college term paper. Gregory Watson resurrected James Madison’s idea that pay changes for members of Congress should not take effect until the next congressional term. Although the amendment had been ratified by nine states prior to his 1982 paper, it had been largely forgotten. There has also been a resurgence of interest in the Equal Rights Amendment, with Illinois ratifying it last month.
This alteration would not result in a perfect system. One can easily imagine politicized investigations should the attorney general and the president find themselves at odds. Congress could use its power of the purse to trim funding for any investigations it deemed illegitimate or ill-advised.
The idea could also produce a host of unintended consequences — from a deluge of dark money corrupting the legal process to the creation of an office with electoral authority rivaling that of the president.
However, in an era when a president openly pines for an attorney general who will “protect him” from the investigation of a special counsel, it is well worth pondering how the system can be improved.
While a popular vote is most ideal, similar to the vast majority of states, two other approaches are worth considering. State legislators elect Maine’s attorney general for a two-year term, while the Tennessee Supreme Court elects that state’s attorney general to an eight-year term. Both of these systems would be preferable to the current cabinet-level position.
The Trump presidency has been a stress test for the Justice Department’s commitment to impartiality. Direct election of the attorney general by popular vote would be one way to take law enforcement out of the hands of the powerful people it’s supposed to keep in check. It’s one more way to balance our government to be more fair and responsive to the American people than the status quo.Tom Emswiler is a public health advocate and former congressional aide based in Quincy. Follow him @tomems8. Will Isenberg is a founding partner at the law firm Isenberg Groulx LLC in Boston.