Proposed Attorney General Amendment

7 Pages Posted: 18 Aug 2022 Last revised: 21 Sep 2022

Date Written: August 14, 2022

Abstract

Recent events demonstrate the compelling need to amend the Constitution to guarantee the independence of the office of the U.S. Attorney General. I personally have confidence in the integrity of Attorney General Merrick Garland. But regardless of what anyone thinks of him, it is deeply troubling to contemplate the storm of political controversy and attacks upon him, the Department of Justice, and the FBI (part of that department and under his supervision), following his approval of a search of former President Trump's private residence.

It is now clear that millions of Americans, on both sides of our widening and increasingly dangerous political divide, will never have confidence in any Attorney General who is a political appointee subject to dismissal by, and perceived as beholden to, any incumbent president. However unfair this may be to Attorney General Garland and President Biden, it points to the desirability of a structural reform that would, in fact, make the Attorney General independent of the president and shielded from partisan politics. That would restore confidence on both sides and stabilize the rule of law in our divided nation.

In August 2020, I posted on SSRN a set of proposed reform constitutional amendments, including one designed to do precisely that: to shield the Attorney General from politics. This paper now breaks out the proposed Attorney General Amendment as a freestanding proposal, with some revisions and updates.

Keywords: Attorney General, FBI, Federal Bureau of Investigation, Department of Justice, constitutional amendment, Garland, Trump, Biden

JEL Classification: K19, K42

Suggested Citation

Wildenthal, Bryan H., Proposed Attorney General Amendment (August 14, 2022). Thomas Jefferson School of Law Research Paper No. 4190048, Available at SSRN: https://ssrn.com/abstract=4190048 or http://dx.doi.org/10.2139/ssrn.4190048

Bryan H. Wildenthal (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States

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