Jed Shugerman is a professor at the Fordham University School of Law.
Some suggest Matthew G. Whitaker’s appointment as acting attorney general is unprecedented. It is likely unconstitutional, but, unfortunately, it is not new. After about 150 years of mostly professional attorneys general, a long line of insiders, hacks, cronies and fixers has occupied the office for much of the past century, and has too often damaged the rule of law.
President Trump’s appointment of Whitaker is a steep drop off a slippery slope of corruption. It’s time to make the Justice Department more structurally independent from presidents and their meddling.
Unfortunately, there are even precedents for presidents appointing crony attorneys general as protection from investigation.
Richard M. Nixon first appointed his campaign manager, John Mitchell, who could protect him from investigation into his 1968 campaign. Then Nixon appointed Richard G. Kleindienst as attorney general after the Watergate break-in was already being investigated. Kleindienst himself was already compromised as deputy attorney general: Nixon and his adviser and co-conspirator John Ehrlichman had told him to drop an antitrust suit against ITT, one of the president’s biggest campaign donors. In 1971, Kleindienst cut a corrupt, favorable deal for ITT, and later lied to Congress about it. He resigned as the Watergate scandal escalated and, in 1974, pleaded guilty in connection with the ITT case.
Some have attributed to Joseph P. Kennedy Sr., perhaps apocryphally, this advice to his son John: “When you get to the White House there are two jobs you must lock up — attorney general and director of the Internal Revenue Service.” John F. Kennedy’s brother Robert had become famous for investigating organized crime as chief counsel of a Senate committee in the 1950s, but he was understood to be the family’s protector when he became attorney general.
Robert F. Kennedy’s appointment was uniquely nepotistic, but it was not unique in another respect: Presidents have often hired campaign managers as attorneys general. The first was Harry M. Daugherty, Warren G. Harding’s campaign manager, in 1921. This crooked combination was involved in one of the worst scandals in American history, Teapot Dome.
Future presidents did not learn the lesson. In addition to Nixon’s appointment of Mitchell, Harry S. Truman appointed his campaign manager, Howard McGrath, who resigned after trying to block an investigation into his DOJ. Dwight Eisenhower, Franklin D. Roosevelt and Ronald Reagan appointed key figures from their political campaigns, too. Jeff Sessions fit in this crony category.
The turning point of attorney general cronyism was A. Mitchell Palmer — one of Woodrow Wilson’s insiders and his 1912 convention floor leader. Wilson’s private secretary advised that the attorney general’s office had “great power politically. We should not trust it to anyone who is not heart and soul with us.” So Wilson chose Palmer — who ordered the infamous Red Scare Palmer raids, with mass arrests and deportations of Russian immigrants.
Palmer’s tenure illustrates one reason why the office of attorney general became so politically salient: Over the course of the 20th century, it wielded tremendous power over immigration, deportation and national security. Certainly, the president must have command over those areas, and the attorney general must be politically accountable.
Yet those powers should also be more insulated from partisan abuses. Over the past century, the Justice Department has been involved in crackdowns on the opposing party and manipulative efforts to investigate “voter fraud.” George W. Bush’s second attorney general, Alberto Gonzales, another crony, made his DOJ more partisan, leading to a scandal over several fired U.S. attorneys for their alleged failures to investigate voter fraud and prosecute more Democrats. Some said that episode was a low point in DOJ history. They did not foresee these past two years, or the past two weeks.
In light of these long-term trends and recent crises, Congress should act to reform and restructure the Justice Department. Congress created the department in 1870 in part to insulate government lawyers and prosecutors from patronage politics and party manipulation. The past century has betrayed those designs.
One obvious reform is to require that only a Senate-confirmed Justice official can serve as acting AG. But Congress should go further. Because the attorney general has always served a “quasi-judicial” function, Congress has the power to make that office more independent from presidential control. One way would be to make the AG more like the political head of an independent commission, though not as independent as the Federal Reserve Board or the Securities and Exchange Commission. The attorney general and a small number of deputies could still be appointed and removed at will by the president, but all major decisions would have to be approved by the commission — including two or more independent members, at least one from each party, with each serving long terms and removable only for cause. These commissioners would at least serve as checks and anti-crony watchdogs.
On a more modest level, Congress could turn lower-level, quasi-judicial parts of the Justice Department into formally independent agencies. For example, the Office of Legal Counsel, which writes precedents and offers legal advice, is meant to hold the president to the law — but the current structure undermines that role. And the OLC’s recent memo supporting the Whitaker appointment is a permanent stain on its institutional legacy.
Such reforms are possible. They are legally and constitutionally viable. And they are urgent. The only question is the political will.