Who is the attorney general's client?

• Author: Dailey, William R.

Two consecutive presidential administrations have been beset with controversies surrounding decision making in the Department of Justice, frequently arising from issues relating to the war on terrorism, but generally giving rise to accusations that the work of the Department is being unduly politicized. Much recent academic commentary has been devoted to analyzing and, typically, defending various more or less robust versions of "independence" in the Department generally and in the Attorney General in particular. This Article builds from the Supreme Court's recent decision in Free Enterprise Fund v. Public Co. Accounting Oversight Board, in which the Court set forth key principles relating to the role of the President in seeing to it that the laws are faithfully executed. This Article draws upon these principles to construct a model for understanding the Attorney General's role. Focusing on the question, "Who is the Attorney General's client?", the Article presumes that in the most important sense the American people are the Attorney General's client. The Article argues, however, that that client relationship is necessarily a mediated one, with the most important mediating force being the elected head of the executive branch, the President. The argument invokes historical considerations, epistemic concerns, and constitutional structure. Against a trend in recent commentary defending a robustly independent model of executive branch lawyering rooted in the putative ability and obligation of executive branch lawyers to alight upon a "best view" of the law thought to have binding force even over plausible alternatives, the Article defends as legitimate and necessary a greater degree of presidential direction in the setting of legal policy. This position is defended in terms of democratic accountability, epistemic humility in the face of the indeterminacy of law, and historical practice.

INTRODUCTION

The current and previous presidential administrations have served us no end of political-legal controversies, from torture memos penned early in the war against Al Qaeda and its allies, to whether to try Guantanamo detainees before civilian or military tribunals, to how the President ought to be advised about the constitutionality of laws by the Attorney General and the Department of Justice (DOJ). Any number of controversies plucked from the headlines of the last several years of reporting and commentary on the moral, political, and legal challenges inherent in the war against international terrorism refer to episodes that have vexed the United States government generally, and the executive branch in particular, as it struggles to find a way forward in what is frequently uncharted legal terrain. This Article will focus upon the Office of the Attorney General and in particular on the proper understanding of the role of the Attorney General of the United States in serving the President and the American people. Although there is a rich and complicated moral and political context in which these legal questions are situated, for the most part such considerations will operate in the background as we explore the contours of the duties of the Attorney General as a lawyer first and foremost. (1)

I will offer a model of understanding the responsibility and accountability of the Attorney General that I hope can be extended to government lawyering more generally, including to lawyers serving in both the legislative and judicial branches of government. Specifically, I want to focus attention on the Attorney General as a lawyer working for a client--the American people. (2) The model I propose is that of a mediated client relationship. For if it is true--as in some sense it must be--that a lawyer who works for the United States works not for the President alone, nor for a Senator alone, nor for a Judge alone, but for the American people, it must be admitted nevertheless that such a description of the client relationship may raise more questions than it answers. The model of a client relationship mediated by various representatives of the client--here, the President, the Congress, laws, rules, regulations, and customs--is presented as capturing the forces and boundaries that properly ought to shape and constrain the Attorney General in serving all of the American people. A common and appealing alternative approach, emphasizing simply the "independence" of the Attorney General, threatens only to undermine the proper client service of the Attorney General by substituting the judgment, will, and whim of the President with that of the Attorney General. The question of the proper role of the Attorney General cannot be settled by overemphasizing its alleged uniqueness among cabinet posts. Rather, it is best answered by fidelity to the larger constitutional structure, which after all directs the executive branch--headed, of course, by the President--faithfully to execute the laws.

The Supreme Court's recent decision in Free Enterprise Fund v. Public Co. Accounting Oversight Board, (3) handed down on the last day of the October 2009 Term, while not disturbing the broad contours of the modern administrative state (including, in some instances, restrictions on the President's removal power), is highly instructive here. There the Court considered and rejected as unconstitutional what it described as the Sarbanes-Oxley Act's "dual for-cause limitations on removal" of members of the Public Company Accounting Oversight Board, holding that combining layers of removal restrictions "contravene[s] the Constitution's separation of powers." (4) The Court's reasoning in Free Enterprise Fund is consonant in language and logic with the argument that I will make here concerning the Attorney General. Most importantly, the Court made consistent recourse to the fact that democratic accountability in the executive branch rests with the President, not with any of the officers appointed by the President: "The diffusion of power carries with it a diffusion of accountability. The people do not vote for the 'Officers of the United States.' They instead look to the President to guide the 'assistants or deputies subject to his superintendence.'" (5)While it is true that there were no votes among the justices in the majority or dissent in Free Enterprise Fund who indicated a willingness to upset the basic legal assumptions underlying the administrative state, the majority opinion did raise concerns about the dangers of diluting the power of the President as the chief executive: "The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive's control, and thus from that of the people." (6)

Worries over the control of government power, and especially over the pursuit of justice and the enforcement of law, are nothing new. (7) One suspects that Madison had such in mind in penning his classic formulation in Federalist 51:

If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. (8) Yet recent years have seen a marked increase in the frequency and intensity of expressions of concern over the independence of the Attorney General from the President in particular and the political activity of the White House in general. The centrality of the DOJ, and especially of the Office of Legal Counsel (OLC), in helping to define the contours of key elements in the war on terrorist groups in the aftermath of 9/11, perhaps more than any other single factor, has ensured that the role of lawyers in our governance will remain a topic of enormous interest to politicians, the academy, and the public for years to come. (9) And while disagreements about just how independent from the President the Attorney General ought to be have not been and will not be limited to issues concerning the war on terror, the urgency and prominence of those issues in our national debate have prompted public officials, journalists, and academic commentators to raise charges of "politicization" of the DOJ's work in both administrations. (10)

This Article examines the separation of powers issues at stake in the operation of the DOJ, focusing in particular on the office of the Attorney General of the United States. To this end, I should clarify three general points about my approach. First, I intend to treat the Office of the Attorney General as a kind of "unitary executive in small" with respect to the DOJ. That is, however much in a given case (as with the executive branch more generally) the Attorney General may be removed from the decisions or work product of other DOJ attorneys, ultimately the Attorney General is responsible for the proper functioning of the Department, and the decisions of the Solicitor General or of the OLC are properly attributable to the Attorney General. To illustrate by way of example, as we will see below, it is at least possible that Attorney General Ashcroft was left out of the loop for at least some of the advising with respect to interrogation policies in the last administration. To the extent this was the case, we should see this as a violation of proper functioning within the department. Thus, both for purposes of simplification in thinking about executive branch lawyering, and for normative reasons relating to institutional accountability, this Article will consider the work of the subordinate units of the DOJ as fairly attributable to the Attorney General. (11) Second, I should emphasize that I am interested in the Attorney General's role as a lawyer and legal advisor to the President here, and have not focused upon the other roles that the Attorney General plays as the head of a large bureaucracy...