Mitigating the politics of prosecution


Americans have deep reservations about Attorney General Eric Holder’s announcement that the Obama administration will prosecute the 9/11 conspirators in a civilian court in the heart of New York City rather than in a military tribunal abroad. And perhaps rightly so, because the choice is perceived by many as targeting not only Khalid Sheikh Mohammed and his fellow evildoers but more squarely as a thinly veiled effort to prosecute the sins of the Bush administration.

In the last decade, U.S. attorneys general have steadily eroded the independence of the office in the eyes of Americans. John Ashcroft’s conflict of interest in the CIA leak scandal, Alberto Gonzales’s firing of several U.S. attorneys, Michael Mukasey’s position on waterboarding, and Eric Holder’s decision earlier this fall to investigate CIA interrogation tactics — all of these actions have been seen, rightly or wrongly, as driven by politics rather than required by law.

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To prosecute on behalf of Lady Justice — that is the Latin command on the seal of the Attorney General. Lady Justice, who in the Roman tradition wore a blindfold, stood as a symbol of the impartial application of the law. While most interpret her blindfold as a tool to demonstrate her impartiality —that justice is blind, as it were — the better reading is to see her blindfold as giving citizens the perception that she renders justice independently of external influences of money, power and politics. Because to ensure the moral integrity of law, justice must not only be blind, it must also be perceived as blind.

When the Founding Fathers designed the office of the attorney general, they assumed — incorrectly, it turns out — that the president would never dare compromise the independence of the office, let alone drag its occupant down into the political thicket. The Judiciary Act of 1789 creating the office provides quite simply that the president shall appoint a person “learned in the law” who in the “faithful execution of his office” shall “prosecute and conduct all suits” on behalf of the United States. That the enacting law makes no explicit mention of justice, impartiality or independence should come as no surprise precisely because these values were understood to underpin the mandate of the attorney general.

What is surprising, however, is that the Act did not require the president to seek the advice and consent of the Senate. Perhaps because the president was expected to appoint an eminently qualified, independent-minded person to the office, the framers did not insist upon Senate confirmation. In fact it was not until 1966 that Congress passed a law requiring Senate confirmation for attorneys general.

Nonetheless, the nation’s first president sent his appointees to the Senate for approval, judging correctly that Senate confirmation would clothe the attorney general in an unassailable measure of legitimacy. George Washington’s successors followed suit, garnering supermajority Senate support unheard of in today’s political climate: 80 percent for James Madison’s appointee Richard Rush in 1814; 89 percent for Abraham Lincoln’s appointee Edward Bates 1861; 80 percent for Andrew Johnson’s appointee William Evarts in 1868; and 92 percent for Franklin Roosevelt’s appointee Frank Murphy in 1939.

This compelling precedent, Senate confirmation by special supermajority vote, may be the solution for restoring the perception of independence to the attorney general. Supermajority confirmation is the best proxy for political independence, for a nominee will achieve a supermajority vote only if he or she is regarded as objective, even-handed and faithful above all to the law. And since a single party so rarely controls a supermajority of Senate seats, supermajority confirmation would necessarily entail bipartisan support.

But to ensure that the attorney general commands real bipartisan support, rather than merely token gestures from two or three Senators from the opposing party, 80 percent should be required for confirmation. A high threshold, to be sure, but one that has historically been well within the reach of an independent nominee.

Requiring such a heightened supermajority vote would demand very little legislative legwork and, importantly, no constitutional tinkering. Congress would need only to amend its own 1966 law to read that the attorney general shall be nominated by the president and confirmed “by and with the advice and consent of 80 percent of all voting Senators.” That is all. One minor legislative revision, and faith could be restored in the attorney general.

As the nation’s chief law enforcement officer, the attorney general is bound by a solemn sacred trust to pursue justice without partisan impulse. Yet today the attorney general is now seen as loyal first to the president and only second to the law — a view that has hardened over the past decade and threatens to endure into the next. That is why it is more important now than ever to restore the perception of independence to the attorney general.

Albert is an assistant professor at Boston College Law School, where he specializes in constitutional law and democratic theory.