Canary in the Coal Mine

Jeff Sessions Is the Canary in the Coal Mine

It took well over a century for the office of the attorney general to accrue power and independence. Trump could blow that all up.

By JOSHUA ZEITZ

President Trump’s condemnation of his own attorney general may seem bizarre and unprecedented, but here’s something many in America’s gobsmacked chattering class are forgetting: The vaunted independence of the Justice Department took over a century to build, and it’s a far more fragile institution than we realize.

The spectacle of Trump attacking Jeff Sessions, one of his earliest and most stalwart supporters, as “beleaguered” and “unfair” is certainly jarring. The president seemingly cannot help but vent his frustration over the attorney general’s decision to step aside in the Department of Justice’s probe into Russian election interference—a step that led indirectly to the appointment of special counsel Robert Mueller. If Sessions “would have recused himself before the job,” Trump told the (“failing”) New York Times. “I would have said ‘Thanks, Jeff, but I’m not going to take you.’”

The prospect that the president might fire Sessions, whose immigration policies and draconian approach to law enforcement are anathema to the left, places Democrats in an unusual position. They despise the attorney general but find themselves bound to protect the independence of his office. But the real test lies with Republicans, who have largely looked the other way as Trump has laid waste to one political norm after another. Will they draw a sharp line in the sand, or bury their heads in it?

It took well over a century for the office of the attorney general to accrue the very power and independence that Trump now stands poised to blow up. Originally a minor position with little authority or autonomy, over the years the AG emerged as the nation’s top law enforcement official and a key adviser to the president. The office withstood considerable strain in the latter quarter of the 20th century. But like so many civic institutions today, it is imperiled precisely because it is largely the product of traditions, and administrative rules that capture those traditions, rather than permanent statutes or laws. Once broken, it may not be so easily reassembled.

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Congress established the position of attorney general when it passed—and George Washington signed—the Judiciary Act of 1789. The first attorneys general technically served as members of the cabinet alongside the secretaries of state, war and the treasury, but the job paid so poorly—$1,500 per year, compared with $3,500 for other Cabinet posts—that most of the incumbents prior to 1854 maintained private law practices in tandem with their official responsibilities. Given the paucity of federal criminal law, the AG more closely resembled a part-time legal adviser to the president—an early version of White House counsel—than the nation's top prosecutor.

Until 1819, the attorney general did not even have a single clerk, nor until 1821, an official office. Some of the earliest officeholders didn’t even bother to move to Washington, D.C., preferring to remain at home and travel to the capital as needed. It wasn’t until the Civil War that federal prosecutors—the forerunners to today’s United States attorneys—began to report directly to the AG; before then, they fell under the jurisdiction of the Treasury Department. Edmund Randolph, the first attorney general, mused with disgruntlement that he was “sort of mongrel between the State and the U.S.: called an officer of some rank under the latter, and yet thrust out to get a livelihood in the former—perhaps in a petty mayor’s or county court. … Could I have foreseen it, [it] would have kept me at home to encounter pecuniary difficulties there rather than add to them here.”

The power of the attorney general grew during the Civil War, as the federal state greatly expanded its scope and authority, and as the Lincoln administration required greater powers of enforcement and prosecution in light of widespread civil unrest in border states and the lower Midwest. These requirements only intensified during Reconstruction, given the surfeit of federal cases concerning confiscation of property, treason, voting rights and personal liberty.

In response, Congress voted to formally create the Department of Justice in 1870 and to place most federal law enforcement officials, including newly titled U.S. attorneys, under the attorney general’s purview. The new law also established the office of the solicitor general—the government’s chief litigator—and introduced the first civil service protections and rules that endeavored to shield the department from political influence and caprice.

These developments were of a kind with broader political and civil service reform movements in the Gilded Age, and with the professionalization of the legal profession during the same period. As state bar associations tightened qualifications to practice law—a development that mirrored similar movements other professions, including medicine—and universities created new legal curricula rooted in scientific discipline and case method, early DOJ lawyers jealously insisted on professional independence and stature, placing them at arm’s length from partisan political machines that treated other government jobs as grist for the patronage mill. It was during this period that the modern Justice Department took shape—an institution in but not always of whatever presidential administration temporarily occupied the White House.

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The first high-profile presidential sacking of an attorney general occurred in 1924, when Calvin Coolidge reluctantly caved to pressure by his commerce secretary, Herbert Hoover, to fire AG Harry M. Daugherty, a onetime Ohio political boss and crony of the late president, Warren G. Harding. Deeply enmeshed in the Harding administration’s many financial scandals, Daugherty later stood federal trial on charges that he received an illegal payout after the government seized the American Metal Company during World War I. At the time of his dismissal, there was little doubt that the president could replace his attorney general. Since 1789, it had been well-established tradition that all executive branch officials served as the pleasure of the chief executive.

It wasn’t until almost 50 years later that the office of the attorney general faced—and in some respects failed—the first major test of its professional integrity and independence. In 1973, President Richard Nixon empowered his new attorney general, Elliot Richardson, to appoint an independent prosecutor in the Watergate affair. That summer, members of the Senate Select Committee on Watergate learned of the existence of secret Oval Office audiotapes that they believed might shed light on Nixon’s involvement in the execution and cover-up of the original Watergate burglary. In the tussle that ensued, Nixon claimed executive privilege and refused to hand over the tapes to Archibald Cox, the special prosecutor.

On October 20, 1973, Nixon ordered Richardson to fire Cox. Richardson refused and resigned, as did Deputy Attorney General William Ruckelshaus. It fell to Solicitor General Robert Bork, a hard-line conservative and onetime law professor at Yale, to close down Cox’s operation. The event would thereafter be known as the “Saturday Night Massacre.”

In the 50 years after Coolidge’s dismissal of Daugherty, the Department of Justice had grown in size and importance, part and parcel of the general expansion of federal authority that grew out of the New Deal era and World War II. Like other federal agencies and administrative offices, DOJ was increasingly staffed by career professionals who valued the quality and integrity of their mandate. Few people questioned the president’s right to remove executive branch officials. But many doubted the propriety of scuttling an investigation whose principal targets worked in the White House.

To be sure, the Department of Justice had already been sorely compromised during Nixon’s presidency. In January 1972, Richardson’s predecessor, John Mitchell, who was weeks away from resigning his government post to run the president’s reelection race, hosted a small meeting to consider a coordinated effort to aid Nixon’s campaign. The brainchild of G. Gordon Liddy, an eccentric former FBI agent turned dirty trickster, Project Gemstone was budgeted at $1 million and involved not only illegal wiretaps and break-ins, but also the kidnapping and mugging of political opponents and the use of prostitutes in a targeted blackmail and confidence scheme. “Not quite what I had in mind,” Mitchell responded gruffly. When Liddy returned eight days later with a scaled-back plan ($500,000, and no prostitutes, kidnappings or muggings), White House Counsel John Dean shut down the discussion. “I don’t think this kind of conversation should go on in the attorney general’s office,” he remarked. He was right. That the nation’s top law enforcement official was conspiring to break the law—however outlandish Liddy’s plans may have been—represented a gross violation of public trust.

Mitchell later became the first and only attorney general to serve time in federal prison.

The next great test came some 20 years later. Not long after appointing Janet Reno as the nation’s first female attorney general, Bill Clinton came to rue his decision. In part, the frosty relationship between president and AG owed to circumstances well beyond either’s control. Early in her tenure, Reno oversaw a deadly raid on the compound of a heavily armed religious cult in Waco, Texas. She drew heated criticism for her handling of the action. It was also Reno’s misfortune to occupy the top law enforcement spot when the United States became embroiled in a controversial custody battle concerning Elián Gonzalez, a young refugee whom the federal government returned to family members in Cuba.

But the real rift came when Reno allowed Kenneth Starr, a special prosecutor investigating potential financial improprieties that Clinton and his wife, Hillary, allegedly committed during his days as Arkansas governor, to expand his investigation into side areas. It proved a wide-ranging inquiry that ultimately unmasked the president’s improper relationship with a White House intern. At several steps along the way, Clinton considered firing Reno. But he didn’t—in part because he surely knew that public outcry would only intensify his political and legal exposure, but also because he respected or at least acknowledged the durability of the attorney general’s office as an established, independent institution.

Trump respects no such norms or institutions. He is, for reasons still unknown to anyone outside his inner circle, deeply unnerved by special counsel Robert Mueller, and seemingly fearful in the extreme that Mueller might expand his probe to investigate financial dealings of the Trump Organization. A man famously lacking in impulse control, Trump has been fully transparent that should Mueller delve into his business practices, that decision would cross a “red line.” (Asked what the consequences of such a move would be, the president responded only that he couldn’t “answer that question because I don't think it’s going to happen.”)

But to get to Mueller, Trump first has to get past Sessions. Which may leave him few options but to fire the attorney general.

In that event, Democrats surely won’t cry for Sessions, whom they generally regard as a throwback to America’s not-so-distant apartheid past. But many liberals do feel bound to protect norms and institutions that seem everywhere under threat in the Age of Trump, be they public trust in science and journalism, or voting rights. Out of power, though, there is little they can realistically do to avert a constitutional crisis.

It will fall to two men, Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan, to determine whether the institutional integrity and independence of the attorney general—not the man, per se, but the office—survives. The outlook isn’t good. To date, these two leaders have proved skilled arsonists, systematically pouring gasoline on and torching other important political norms like the legislative hearing process, budget scoring and the principle that the sitting president, no matter which political party he belongs to, is entitled to fill vacant Supreme Court seats.

The question is: Will firing Sessions finally prove a step too far, even for the GOP leadership? If it doen’t, we may find that traditions and norms that took over a century to establish will not be so easily reaffirmed. That’s a danger we’ll all have to live with.