The Fox is Guarding the Henhouse – And We Can Fix That

Last week, on NBC’s Meet the Press, our new U.S. Attorney General Todd Blanche was asked “Can you pledge that the Justice Department will always act independently of the White House?” His reply? “ No, I’m not going to pledge that.” Once again, the Trump administration does us a favor. It unmasks the inherent corruption that had been more politely hidden by previous presidents. As more fully developed in a Cornell Journal of Law and Public Policy article I researched and wrote back in 2010, called Torture, Impunity, and the Need for Independent Prosecutorial Oversight of the Executive Branch, our current system de facto grants impunity for the President of the United States. Because the President gets to appoint–and fire at any time– the only person who can initiate federal prosecutions: the Attorney General, the head of the Justice Department. The fox is guarding the henhouse. But we can fix that. Specifically, we can independently elect our Attorney General. An independently elected prosecutor is already the dominant model in local communities, where 95% of criminal cases are filed and adjudicated. Mayors don’t have control over the person and agency who might file criminal charges against them. State-level attorneys general are also usually elected, so they can similarly hold governors accountable, as can local prosecutors. At the federal level, it seems very possible that, given our divided electorate, we could be electing a president from one party and an Attorney General from a different party. We have a lot of split ticket voters, and we like putting guardrails around our top leaders. How do we do this? Likely through a constitutional amendment of Article II, § 3 which states the President “shall take Care that the Laws be faithfully executed.” But that is not fully settled. The framers did not specifically address the question of whether the Attorney General would be appointed by the President. And in fact they were very concerned about putting checks on the power of any one branch of government. And the first Congress did not see presidential control of federal prosecutions as a constitutional mandate. So there is an argument that we may not need a constitutional amendment. And there are some other anti-impunity options explored in the article, including a strong independent counsel law. But even if a constitutional amendment proves necessary, it is worth it . We need to root out the inherent corruption in our system, where at the highest level of government the fox pretends to guard the henhouse.