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Todd Blanche, a onetime personal lawyer for the president, squeaked through Senate confirmation recently by a single vote. Asked Sunday on NBC’s “Meet the Press” whether the Justice Department he now leads will always act independently of the White House, Blanche declared flatly, “No, I’m not going to pledge that.” His demonstrated readiness to act as the president’s enforcer, launching criminal charges against perceived foes, demands revision of how we choose our future attorneys general — and of how presidents may dismiss them.
That the president has weaponized the Justice Department is plain. No target has proved too great, whether a former FBI chief, the New York attorney general or three sitting senators. And no target has proved too small, from a sandwich-wielding assailant to an alleged Reflecting Pool vandal. It seems anyone who defies or annoys the president risks criminal prosecution.
When the last attorney general, Pam Bondi, lagged in hauling such pesky nuisances before the courts, the president promptly sacked her and installed a more eager and compliant chief prosecutor. The new attorney general not only has scourged the president’s enemies but also tried to exempt the president and his family from investigation or prosecution for any past tax offenses.
The Supreme Court’s end-of-term rulings defining and expanding the president’s power to fire federal agency heads foreclosed any legislative fix for the process of confirming attorneys general. Trump vs. Slaughter and Trump vs. Cook made it dead clear Congress has no power to protect the attorney general, the nation’s chief law enforcement officer, from presidential pressure to prosecute political foes. Absent a constitutional amendment shielding the attorney general from termination without cause, the president can keep weaponizing federal prosecutorial power against perceived enemies.
Though the president must seek the Senate’s advice and consent in appointing an attorney general, the president can fire the officeholder for any reason or no reason at all. Politicians and commentators often tout the attorney general’s traditional independence in exercising prosecutorial power. But as we saw with President Trump’s unexplained dismissal of Bondi, the office is independent only so long as the president permits it to be.
Even in historical terms, the attorney general’s vaunted independence has proved more of an ideal than a reality. Since the presidency of Woodrow Wilson, most attorneys general have been politicos or presidential cronies (or both) and not seasoned and respected legal professionals. As Boston University law professor Jed Shugerman has shown, one of the surest ways to snag the Justice Department’s top job is to serve first as the president’s campaign manager.
The irony of the Supreme Court’s recent rulings is that the justices defended the president’s unbounded power to fire subordinates as a hedge against tyranny. The “buck stops” with the president, the majority wrote. The president must have the power to dismiss underlings so the people know “whom to fire” when something goes wrong in the executive branch.
The problem with this reasoning is that the president answers to the electorate only every four years. In the interim, people targeted by the attorney general at the president’s directive can be indicted, tried and imprisoned. And even if voters disapprove of the use of prosecutorial power, they can’t chastise a second-term president disqualified from running again.
A constitutional amendment allotting a measure of independence to the attorney general may be the only way to tether the president’s power to order prosecutions of political enemies. Such an amendment could be brief:
The power to institute and direct federal criminal prosecutions shall reside in an Attorney General appointed by the President with the consent of two-thirds of the Senators. The Attorney General shall hold office during the President’s term unless removed by the President for neglect, ineffectiveness, or malfeasance with the consent of two-thirds of the Senators or by impeachment. The Attorney General shall have the power to appoint principal deputies and the chief prosecutor of each judicial district with the advice and consent of the Senate and may remove those officers only for neglect, ineffectiveness, or malfeasance.
Requiring concurrence of two-thirds of sitting senators should ensure that a political hack or presidential crony cannot win confirmation as the nation’s chief prosecutor — unlike the simple majority now needed for someone such as Blanche to get past the Senate. And permitting dismissal of the attorney general only by the same supermajority should protect the position from presidential pressure while still ensuring accountability if there are abuses of power.
Skeptics of this proposal might argue that a semi-independent attorney general is alien to our tripartite system of government, as the office no longer would fit squarely within the executive branch. But in 43 states, voters already elect their attorney general. State attorneys general command a degree of independence even greater than this proposed amendment would confer on the federal attorney general. These states’ governments function perfectly well with a chief prosecutor neither appointed nor removable by the governor.
And skeptics might raise another objection: that this proposed amendment, whatever its merits, can’t be ratified. The Constitution is notoriously hard to amend. Two-thirds of both houses of Congress and the legislatures of three-quarters of the states typically must concur on a proposed amendment. But even in today’s harshly polarized climate, granting the attorney general some measure of protection from political pressure is a mission on which warring factions ought to be able to agree. After all, Trump and his most stalwart supporters complain bitterly that President Biden weaponized his Justice Department against them.
Rather than quarreling about who started it, let’s come together on a plan to ensure the next attorney general does not become the next president’s political cudgel.
George Fisher is a professor at Stanford Law School and author of “Letter to a Young Prosecutor: Guidance on Ethics.”
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Ideas expressed in the piece
The article argues that recent presidents have “weaponized” the Justice Department by appointing loyalists as attorneys general, pushing them to prosecute perceived enemies and protect presidential interests, and swiftly firing those who resist, demonstrating that the office’s supposed independence exists only at the president’s sufferance.
The piece contends that new Supreme Court rulings expanding presidential removal power over agency heads confirm that Congress cannot, by statute alone, shield the attorney general from dismissal, leaving a constitutional amendment as the only realistic way to prevent presidents from using federal prosecutors as political enforcers.
The article maintains that the traditional image of the attorney general as a neutral, professional guardian of the law is more aspirational than historical, noting that since the early 20th century many attorneys general have been political operatives or presidential confidants rather than independent legal statespeople.
The column proposes a constitutional amendment under which the president would still nominate the attorney general, but confirmation would require a two-thirds Senate vote, and removal during the president’s term would be allowed only for neglect, ineffectiveness, or malfeasance with the consent of two-thirds of senators or through impeachment, thereby creating structural protection from partisan pressure while retaining accountability.
The piece further suggests that the attorney general should gain explicit authority to appoint and remove, for cause, principal deputies and federal prosecutors in each judicial district with Senate consent, so that the entire federal prosecutorial hierarchy is buffered from direct presidential retaliation yet remains subject to formal checks.
To rebut claims that such an arrangement is alien to American governance, the article points to the experience of 43 states where attorneys general are independently elected rather than appointed by governors, arguing that these officials often exercise meaningful autonomy and that state governments still function effectively despite this diffusion of executive power.[4]
The article notes that legal scholarship and advocacy have similarly emphasized the need to entrench prosecutorial independence, including proposals for constitutional language that would give an attorney general exclusive authority over federal prosecutions and limit removal to a supermajority in Congress, reinforcing the view that only structural change can reliably insulate the office from partisan commands.[2][5][6]
Finally, the article contends that both major parties now complain about “weaponized” justice — with supporters of former President Trump alleging that President Biden’s administration has used the Justice Department against political opponents — and argues this shared grievance should motivate bipartisan support for an amendment ensuring that future attorneys general cannot become any president’s “attack dog.”[2][3]
Different views on the topic
In contrast, proponents of a strong “unitary executive” emphasize that the Constitution vests executive power in the president and argue that the president must retain decisive control over the attorney general and Justice Department so voters can clearly attribute responsibility for law enforcement successes and abuses at election time, rather than diffusing accountability to an insulated prosecutor who does not answer directly to the electorate.[6]
Some constitutional scholars and officials caution that granting the attorney general quasi-independence within the executive branch risks blurring lines of authority and creating a “divided executive,” in which a powerful prosecutor pursues policies that conflict with the president’s agenda, potentially undermining coherent governance and making it harder for citizens to know which institution to blame or reward.[4][6]
Research on state attorneys general notes that, even where these officials are independently elected, courts and legislatures sometimes curtail their authority, and tensions with governors can proliferate, suggesting that state models of prosecutorial independence are more complex and contested than reformers often imply and may not translate cleanly to the federal level.[4]
Other analysts who share concerns about politicized law enforcement nevertheless argue that the better response is to reinforce post-Watergate norms and internal Justice Department safeguards rather than amending the Constitution, stressing that robust informal norms limiting presidential contact with ongoing investigations can help preserve both the appearance and reality of fairness without fundamentally recasting the separation of powers.[3]
Some reformers push in a different direction from the article’s proposal, advocating for more sweeping structural changes such as relocating the attorney general to the judicial branch or creating an independent “Justice Service” headed by an attorney general the president cannot fire, arguing that only complete institutional separation from the executive will meaningfully prevent partisan interference in prosecutions.[1][5]
Practical skeptics focus on feasibility, emphasizing that constitutional amendments require supermajority approval in Congress and ratification by three-quarters of the states and warning that, in a polarized environment, ambitious proposals to entrench attorney general independence are unlikely to advance, making more incremental statutory or institutional reforms a more realistic path for near-term change.[6]
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