Proposed Attorney General Amendment

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