Right now the justice system in the United States has an untenable conflict of interest: the prosecutors that should bring charges against the executive branch when it misbehaves are appointed by the Executive. They’re called U.S. Attorneys and of the Federal officials you think about the least, they are easily the most powerful.
Every inch of the United States has a U.S. Attorney responsible for prosecuting Federal crimes within their jurisdiction. Drug trafficking, organized crime, computer fraud… you name it. Those U.S. Attorneys, and there are 93 of them in all, are political appointees that generally rotate out when a new presidential administration comes to power, not unlike ambassadorships. That arrangement is fine unless you have to investigate the people that appointed you, which is what happens whenever high-ranking executive officials are accused of crimes. For more on that see: 2016 to present.
The U.S Attorneys Offices are stepping stones in their own right. Rudy Giuliani, James Comey, and Robert Mueller were all former U.S. Attorneys. It’s not a cozy job, it’s a high stakes post. Dramatic enough in real-life that the Showtime series Billions has a fictional U.S. Attorney portrayed by Paul Giamatti.
The U.S. Attorneys are answerable to the U.S. Justice Department and, therefore, the Attorney-General. Even the most generous interpretation of the org chart places all U.S. Attorneys only a few rungs below the President of the United States. In practice many report directly to the Attorney-General and, as with all political appointees, some have the ear of the President. It’s probably no coincidence that Justice Department policy bars the prosecution of sitting Presidents; when’s the last time you publicly condemned your boss’s boss to their face?
Compare this arrangement to the state-level system, whereby most states have district attorneys that are elected (albeit on a partisan basis) and are answerable to voters instead of, say, the Governor. If the Governor commits a state-level crime, you can be sure the local D.A. will indict them without prejudice. Therein seems to be the solution: separate the prosecutor from the executive hierarchy.
The best structure would carve out the prosecutorial functions of the Department of Justice and place them under a newly designed Attorney-General. Imagine splitting the U.S. Justice Department into two pieces: a Department of Justice that reports to the President of the United States and an Office of the Attorney-General that does not, and which oversees an apolitical (or at least less political) U.S. Attorney system. Such a structure would also take the policy of whether or not to allow indictments of a sitting President out of the hands of the sitting President.
The FBI, Civil Rights Division, Bureau of Prisons, Office of the Pardon Attorney, and the Solicitor-General, among a couple dozen others, would all remain under the Department of Justice and a new role: the Secretary of Justice. Right now every cabinet official is the Secretary of their particular department (e.g. the Secretary of Defense); that is… every cabinet official except the Attorney-General. What the country needs is a separation of prosecution from partisan oversight. What the Cabinet (and the President of the United States) needs is someone to lead the remaining Justice Department who can always be a political agent without drawing criticism of bias. Enter the Secretary of Justice.
Justice and politics might not sound like good bedfellows, but they can be. The Justice Department administers prisons, tax investigations, drug enforcement, firearms policy, and a significant amount of national security. All things that belong in the political arena. Even the aforementioned Solicitor-General, who argues cases before the U.S. Supreme Court, should remain a political position as they have historically been the representatives of the incumbent administration, not “the people.” What should not be political is the responsibility to prosecute citizens for crimes, especially when the accused are your political allies.
To put this into effect, the new Secretary of Justice could be confirmed by the Senate just like any other Cabinet post, but the Attorney-General and U.S. Attorneys, in their new form, need a slightly different arrangement. The good news is we already have a model to separate politics from matters of greater importance: the Federal Reserve.
Installing a new Attorney-General
The Fed has a Board of Governors nominated by the President and confirmed by the Senate, but crucially their terms of service are not tied to the presidency. The Chairs of the Federal Reserve Board serve under multiple presidents. That should be the model for the revised Attorney-General: a nomination to a 5-year or greater term and Senate confirmation. Think five years is too long? The FBI Director is nominated to a 10-year term.
Then what to do with the U.S. Attorneys who would report to said Attorney-General? It seems the best thing for them would be to transition into a career civil service whereby they are hired by the Attorney-General from the pool of existing career Assistant U.S. Attorneys… who are already civil servants.
It would be a significant transition, some might call it a leap of faith, to allow only one Senate-confirmed official to exercise the appointment of almost 100 very consequential prosecutors. So a management structure even more akin to the Fed, whereby a larger governing board is appointed by the President but to very long terms, would insulate from political pressure while dispersing power.
Each Federal Reserve board member gets a cozy 14-year appointment and from their ranks the President merely chooses the chair for a 4-year cycle, once that cycle is up they still serve the balance of their remaining 14-year appointment. Perhaps the solution for the Office of the Attorney-General as envisioned is to have a governing board with one member for each of the thirteen U.S. Courts of Appeals districts, and the President merely selects one to be Attorney-General for a period of time.
Justice hanging by a chad.
A career civil servant prosecuting you for a crime is a much better scenario for you, the accused. Even though prosecutors notoriously build their careers on winning cases, usually at the expense of America’s poorest defendants, that is at least better than being prosecuted on the whims and leanings of whoever occupies the Oval Office.
For instance, say you are in the cannabis industry and a presidential election is on the horizon. Your entire livelihood could be at-risk if a President is elected who will install anti-cannabis U.S. Attorneys in your jurisdiction. Or imagine you are a firearms retailer enjoying the cool comfort of a Republican administration, that existence could be brought to halt merely by the election of a Democrat as President who vows to turn up the heat on every minutiae of your compliance with the Federal Code. That’s no way to run the law.
Every imaginable permutation of the Federal prosecutorial system is better when the gamesmanship of political appointees is removed from the equation. Other democracies are wise to this fact.
Israel separates its Attorney-General and Ministry of Justice, with an Attorney-General appointed to a six-year term along with safeguards to prevent their removal. Brazil has an Attorney-General that is a member of the Executive Cabinet, but appoints a Prosecutor-General that is an independent officer leading prosecutions. Germany gives traditional prosecutorial power to its police and states, leaving its Ministry of Justice to focus on the political aspects of the justice system.
Surprisingly though the Democracy Index, a tool from The Economist to measure the efficacy and fairness of democracies, does not judge the independence of the judiciary. It is not a significant leap to suggest that an independent judiciary in a democracy does not just mean judges insulated from political pressure, but also would mean that prosecutors are not unduly influenced by corrupt officials. The future of liberal democracies has to include prosecutorial independence, and the United States is in a position to lead the way… having experienced the pain of the alternative for too long.