What Bill Barr doesn’t understand about the office of attorney general

by Cornell W. Clayton

Cornell W. Clayton is the Thomas S. Foley Distinguished Professor of Government at Washington State University and author of “The Politics of Justice: The Attorney General and the Making of Legal Policy” (M.E. Sharpe, 1992).

Last week in a Washington Post op-ed, Eric Holder — former attorney general under President Barack Obama — called William P. Barr unfit to hold his office. Barr had delivered a controversial speech to the Federalist Society that included much-criticized comments about policing. But Holder argued with a less noticed part of the speech: Barr’s embrace of the so-called unitary executive theory. As Holder writes:

Barr made the outlandish suggestion that Congress cannot entrust anyone but the president himself to execute the law. In Barr’s view, sharing executive power with anyone “beyond the control of the president,” … presumably including a semi-independent Cabinet member, “contravenes the Framers’ clear intent to vest that power in a single person.” This is a stunning declaration … revealing of Barr’s own intent: to serve not at a careful remove from politics, as his office demands, but as an instrument of politics — under the direct “control” of President Trump.

Barr has long held this view of presidential authority. Under this theory, the president has blanket authority to control the work carried out by federal law enforcement officials — because the framers vested executive branch authority entirely in him.

What the framers thought

The unitary executive theory remains deeply controversial among scholars. But whatever the Constitution’s framers may have thought about it, they would have rejected its application to the attorney general.

My research on the history of the office suggests that the framers considered it a quasi-judicial post, independent from the president. Congress originally established the office with the Judiciary Act of 1789, the act creating the federal court system — not the acts establishing executive departments. As originally drafted, attorneys general were to be appointed by the Supreme Court, not the president. Before passing the bill, Congress changed that to presidential nomination and Senate confirmation, undoubtedly so that the AG would be appointed in the same way as federal judges — not as a statement of the office’s constitutional status.

Read entire article at Washington Post