Who is the Attorney General's Client?

Abstract:     
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 Company Accounting Oversight Bd., 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.

Number of Pages in PDF File: 66

Keywords: Attorney General, Separation of Powers, Constitutional Law, Executive Power, OLC, torture memos, PCAOB, independent agencies

Accepted Paper Series