THE DISPUTE OVER the dismissal of eight U.S. attorneys poses a fundamental question: To what degree may the president exercise authority over the direction of law enforcement?
In the aftermath of Watergate, President Carter directed Atty. Gen. Griffin Bell to prepare legislation that would make the attorney general an appointed post for a definite term, subject to removal only for cause. Carter's idea was to keep the attorney general independent of presidential direction to ensure that the Justice Department's authority would never again be abused for political purposes, as it had been during the ethically troubled Nixon presidency.
Despite Carter's noble intent, Bell refused. In a little-known memorandum to the president dated April 11, 1977, he explained why. Any law that restricted the president's power to remove the attorney general -- and, by inference, to fire any U.S. attorney -- would likely be found unconstitutional. The president, Bell reasoned, is held accountable for the actions of the executive branch in its entirety, including the Justice Department; he must be free to establish policy and define priorities, even in the legal arena. "Because laws are not self-executing, their enforcement obviously cannot be separated from policy considerations," Bell wrote.
Carter argued that the attorney general is different from other Cabinet officers. The job entails dual responsibilities: carrying forward White House policies like any other Cabinet official, and representing the law of the United States, whether it coincides with the president's policies or not. Bell agreed, but he found that insufficient to justify separating the attorney general and subordinate U.S. attorneys from presidential direction.
Bell anchored his reasoning on Supreme Court precedent, especially Chief Justice William Howard Taft's opinion in Myers vs. United States (1926).
Congress enacts different types of laws, the chief justice opined. Some laws require close supervision by the president, while others draw upon the expertise found within the specific agencies of government. Much law, however, generally empowers the executive, and when subordinates perform these functions, "they are exercising not their own but [the president's] discretion," the court said. "Each head of a department is and must be the president's alter ego in the matters of that department where the president is required by law to exercise authority."
