The Attorney General's Forgotten Duty

There's a phrase that gets thrown around Washington every time a controversy erupts at the Justice Department: "The attorney general is the president's chief law enforcement officer." Technically true. But that half-truth has become a license for something the Founders never intended: turning the nation's top prosecutor into the president's personal legal shield. Let me be precise about what I mean, because the distinction matters more now than it has in a generation. The attorney general of the United States sits at the intersection of constitutional duty and executive power. And the way we've let that balance tip - always in favor of the president's political interests - is a quiet erosion of the rule of law.

What the Founders Actually Built

When the First Congress created the office of attorney general in 1789 under the Judiciary Act, it was a remarkably modest position. One man, part-time, without a department, without a staff, without even a clerk. His job was simple: appear before the Supreme Court in cases involving the United States and give legal advice to the president and cabinet when asked. Notice what he was not: the president's enforcer. He wasn't a political lieutenant. He wasn't a fixer. He was the chief legal officer of the United States - answerable to the law itself, not to the man who appointed him. James Madison, in Federalist No. 51, wrote that "the interest of the man must be connected with the constitutional rights of the place." That means the occupant of an office should be aligned with the office's purpose - not with a party, not with a patron, not with a president's approval rating. The attorney general's purpose was singular: see that the laws be faithfully executed. That's Article II, Section 3. That oath runs to the Constitution, not to the president's political agenda. But over two centuries, the office grew into the Department of Justice - tens of thousands of prosecutors, FBI agents, civil litigators, and enforcement staff. And with that growth came power. And with power came temptation.

How the Office Got Bent

The temptation is structural: the president appoints the attorney general. The president can fire the attorney general. So the attorney general, being human, is naturally inclined to serve the president's interests - even when those interests conflict with the impartial enforcement of law. This isn't a partisan observation. It's a structural flaw that every administration since at least Watergate has exploited. Consider the pattern. Under Nixon and Watergate, Attorney General John Mitchell - who had been Nixon's campaign manager - used the Justice Department to protect the administration. He famously said, "Watch what we do" - and what they did was cover up a burglary using federal power. It took a special prosecutor, not the sitting attorney general, to hold anyone accountable. During the Clinton era, Attorney General Janet Reno was famously independent - she didn't hesitate to appoint independent counsels, including one who investigated her own boss. But the system was already so politicized that each appointment was met with cries of conspiracy. The independence was real, but the perception of partisanship had already infected the soil. Under the Bush administration, the firing of nine U.S. Attorneys in 2006 - many for refusing to pursue politically motivated corruption cases against Democrats - was one of the most brazen examples of the White House treating the Justice Department as a political instrument. Under the Obama administration, the IRS targeting scandal - where conservative groups were singled out for extra scrutiny - was met with a Justice Department that found no wrongdoing. Attorney General Eric Holder was held in contempt of Congress for refusing to produce documents. The pattern repeated. Under the Trump administration, Attorney General William Barr's preemptive summary of the Mueller report - spinning the findings to benefit the president - was a textbook example of the attorney general acting as defense counsel rather than prosecutor. And under the Biden administration, the appointment of a special counsel to investigate the president's son - forced by the appearance of conflict - only proves the point: the system is so broken that every administration must now create its own parallel justice apparatus just to maintain the appearance of impartiality. Each of these represents a betrayal of the office's constitutional function. Not because the attorney general acted illegally (though sometimes that happens too), but because he acted politically - and the office was designed to be above politics in the execution of law.

The Knowledge Problem in Prosecution

Friedrich Hayek taught us that central planners cannot gather the dispersed knowledge of a free people. The same principle applies to the attorney general. No single person in Washington knows the facts of every criminal case, every civil suit, every investigative lead across fifty states. Yet the modern system has concentrated enormous power in the hands of the attorney general to decide which laws to enforce, against whom, and with what vigor. That discretion is supposed to be checked by professional norms - career prosecutors, institutional independence, the Code of Federal Regulations. But those checks only hold if the attorney general is willing to resist political pressure. Thomas Sowell would remind us: look at incentives. When an attorney general's career depends on pleasing the president, the incentive is to please the president, not to uphold the law impartially. Sowell's "constrained vision" of human nature tells us that expecting an appointed official to consistently act against his self-interest is not just naive - it's dangerous. You must build institutions that channel self-interest toward good outcomes, not ones that depend on heroic virtue.

The Monopoly on Force and the Rule of Law

The Justice Department holds a unique power in a free society: the legitimate monopoly on prosecutorial force. The attorney general can bring charges that ruin reputations, destroy families, and end careers. That power is terrifying - and it must be wielded with a restraint that only genuine impartiality can provide. Milton Friedman often said that the great achievement of capitalism was that it separated economic power from political power. In a market economy, if you disagree with your grocer, you can shop elsewhere. But if you disagree with the attorney general, you don't have that option. His power is coercive, not voluntary. That's why the Constitution places strict limits on government power - and why the attorney general's office must operate within those limits with surgical precision. When the attorney general becomes the president's lawyer, the distinction between political power and legal authority collapses. Suddenly, the monopoly on force is used not to protect rights, but to advance partisan interests. That's the road from a republic to a tyranny - not the tyranny of a dictator, but the tyranny of a political machine that uses the law as a weapon.

The Failed Experiment of the Independent Counsel

You might ask: why not just appoint a permanent special prosecutor, or revive the independent counsel statute that expired in 1999? Because that cure was worse than the disease. The independent counsel law - passed after Watergate - created a prosecutor who was almost completely unaccountable. No one could fire him. No one could control his budget. He could investigate endlessly, leak selectively, and ruin anyone he chose - all without any check. Ken Starr's investigation of Bill Clinton is a textbook case. What began as a probe of a real estate deal (Whitewater) morphed into a sex scandal investigation that cost taxpayers over seventy million dollars and produced no indictments on the original subject. The independent counsel had no boss, no accountability, and no incentive to stop. That's not the rule of law - that's a runaway prosecutor with unlimited power. The answer is not to create a fourth branch of government. The answer is to restore the original design: an attorney general who takes his oath to the Constitution seriously.

The Remedy: Restoring Constitutional Boundaries

I'm not calling for a new law or a new commission. What I'm calling for is a return to first principles. The attorney general should behave as though he works for the United States, not for the president's reelection campaign. That means no political interference in criminal investigations. Period. If a case is worth opening, it's worth pursuing on the merits - regardless of the party affiliation of the subject. If you cannot prosecute both sides of a corrupt transaction, you prosecute neither. It means no selective enforcement. The law applies equally to the president's friends and his enemies. The attorney general who refuses to investigate a sitting president's political rival - or who aggressively investigates the president's opponent - has abandoned his duty. It means no signing off on unconstitutional actions just because the president wants them. The attorney general's legal advice to the president should be honest, candid, and grounded in the text of the Constitution - not tailored to justify whatever the White House has already decided. That means telling the president "no" when he asks for something illegal - and being willing to resign rather than comply. This isn't radical. It's what the office was supposed to be from the start. George Washington appointed Edmund Randolph as the first attorney general partly because Randolph had been a delegate to the Constitutional Convention and understood the document's original meaning. Washington didn't want a yes-man. He wanted a constitutional guide.

The Human Stakes

Every time an attorney general bends the law for political convenience, something precious is lost: the trust that the law will be applied equally to all. That trust is the foundation of a republic. Without it, citizens stop believing in the system. They stop respecting the courts. They stop obeying laws they disagree with - because they believe the law is just a weapon used by the party in power. That way lies chaos. That way lies the breakdown of ordered liberty. James Madison warned in Federalist No. 47 that "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." Today, the attorney general holds a piece of each of those powers: he executes the law (executive), interprets the law when advising the president (quasi-judicial), and even sets policy that looks like legislation (through regulations and enforcement priorities). The only thing preventing tyranny is the constitutional character of the person holding the office - and the public pressure to demand better. The attorney general's job is not to be the president's lawyer. The president has a whole team of White House counsel for that. The attorney general's job is to be the nation's lawyer - and to remember that his client is the Constitution.