Writings and observations

The role of an AG

jones

There has been a great deal of discussion of late about the rift between the President and Attorney General Sessions. President Trump apparently feels that Sessions should have stayed with the Russia investigation and nipped it in the bud. While I disagree with much of what Sessions has done, he was absolutely justified in recusing himself from issues related to Russia and the campaign. The attorney general is the person charged with upholding the rule of law. He should not be a political operative. This applies at both the federal and state level.

An attorney general must have some independence from both the executive and legislative branches. Whether at the state or federal level, an attorney general swears an oath to support the constitution and laws of the jurisdiction. He or she swears no oath to any individual in the government. The attorney general is responsible to the citizenry to see that the laws are carried out and that law enforcement is even-handed.

Browbeating the justice system, whether the target is an attorney general or the courts, erodes public confidence in the system and the rule of law. If the attorney general were to act as a political lackey, we might have a replay of the Watergate fiasco where President Nixon’s attorney general, John Mitchell, was convicted for his participation in the Watergate cover-up. Think how different things might have turned out if Mitchell had exercised some independence and advised Nixon to let the investigation move forward without obstruction.

Sessions correctly recused himself because of an apparent conflict. The President seems to feel that Sessions had a professional obligation to him. That is simply not the case. However, officeholders in the legislative and executive branches often have a similar misconception about the attorney general being their personal lawyer. When I served as Idaho Attorney General in the 1980s, some members of my party had the idea on occasion that my official decisions should favor the party. I had to advise them that my responsibility was to follow the law.

That is not to say that an attorney general cannot engage in political activity. I certainly did and almost all other Idaho AGs have done so—attending party functions, taking stands on legislative issues, supporting political candidates, and the like. But, there must be a distinct division between political or policy matters, on the one hand, and interpreting and enforcing the laws, on the other. Allowing political considerations to influence the manner in which justice is administered is an injustice in itself.

Idaho’s current attorney general is a good case study. While I may have disagreements on some policy matters with Attorney General Lawrence Wasden, I admire his courage in correctly following the law. He has been unfairly criticized by members of his party for not toeing the party line on certain hot button issues. His record of being vindicated by courts of law indicates that he was right and the critics were wrong. The State has paid out a lot of money in attorney fees to private parties by disregarding his advice.

When Wasden said the State Land Board was violating the Idaho Constitution by failing to get the maximum long-term return from State cabinsite properties, his advice was not heeded. He filed suit against the Board and was upheld by the Idaho Supreme Court. This precipitated action by the Board to get greater economic values from those lands. This is what a good attorney general does–faithfully follow the laws, regardless of friendships or politics. Presidents, governors and legislators should understand that an attorney general must have independence in order to fulfill that important role. Sniping, obstruction and interference are detrimental to the rule of law, which is the foundation of our system of government.

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