Despite what “distinguished” commentators on Fox News say, an Attorney General does not work for the president. And a United States Attorney or those acting under him do not work for the Attorney General. A U.S. Attorney is nominated by the president and appointed with the advice and consent of the Senate. A U.S. Attorney pledges fealty to neither the president nor the Attorney General but to the Constitution. A U.S. Attorney serves the country, not particular people in the government.
A U.S. Attorney can be removed but not by the Attorney General. Only the president can remove a U.S. Attorney. If a U.S. Attorney position becomes vacant, the Attorney General can appoint an interim U.S. Attorney, but that appointment only lasts for 120 days. Then the District Court where the U.S. Attorney is situated—neither the Attorney General nor the president–appoints another interim U.S. Attorney. In other words, the president cannot avoid the joint appointment power with the Senate for a long time when it comes to a U.S. Attorney.
The Attorney General and U.S. Attorneys inhabit a strange territory filled with inconsistencies. The president can set criminal justice policies broadly or for individual cases. He can remove those who do not follow his directives, but they do not work for him. They serve the country, and he does not have the sole power to replace them. He holds that authority jointly with the Senate. It all makes sense, right, in this nearly perfect country with a nearly perfect constitution where at least someone makes perfect phone calls?
We think our criminal justice system should be blind and impartial, and that is what we should expect of it, but the Constitution does not directly guarantee that. Even if you believe that “faithfully” executing the laws requires impartiality, you should realize that there is no constitutional mechanism to prevent a president from favoring friends other than through elections and maybe impeachment.
Settled law does require that probable cause exists to believe that a person committed the crime in order for that person to be prosecuted for it. If that minimal standard is met, nothing in the Constitution prevents the president from going after his perceived enemies. And no matter how damning the evidence against or heinous their actions, nothing prevents the president from preventing the punishment of his friends. We can only depend on those asked to carry out such directives to thwart them. A determined, corrupt president can make that next to impossible.
Our founders were aware of the dark side of human nature, or, as Alexander Hamilton put it, its “impulses of rage, resentment, jealousy, avarice and other irregular and violent propensities.” The framers of the Constitution created a government of checks and balance as a result, but they could not anticipate all mendacity, paranoia, and self-interest. Now that we have seen a president with a mob boss mentality who scoffs at norms of justice and integrity, we should think about how to regain those norms. If we do get out of this presidency with at least part of our democracy intact, perhaps we can find a way to enshrine blind and impartial justice into law.