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Ending the Imperial Presidency (Part 2): Two Reforms to Improve Public Trust in the Administration of Justice

By Alliance Member Alain Norman, MSc JD

As noted in a prior essay, the Rule of Law (ROL) in the United States is now endangered by an American presidency that, over time, has developed “imperial” powers and trappings. Whereas that article focused on the unconstitutional practice, since World War II, of presidents launching wars without a declaration of war by Congress, this essay highlights another serious problem that undermines American ROL: The president’s ability to influence or politicize the administration of justice. This article argues that we must bolster public confidence in the administration of justice by changing the appointment process of Department of Justice (DOJ) leadership and by creating a Federal Ombudsperson’s Office.1 Both reforms would draw inspiration from other, modern democratic systems.

Bolstering DOJ Independence through a Judiciary-Nominated Attorney General

U.S. ROL has a peculiar, institutionally-based weakness that is often overlooked, and yet is inherent in the current management of the DOJ. Specifically—notwithstanding the presumption that the DOJ is supposed to operate “independently”—a major flaw in our current system is the fact that the Attorney General (AG) is selected by the President. In the past, this has resulted in presidents naming a sibling, personal attorney, or political crony as AG. In contrast, some nations use independent bodies, often called “Judicial Councils,” to select judges and/or prosecutors. Such judicial councils are often composed of judges, as this is seen as helping bolster the autonomy of the judicial system in the face of strong executives, corruption, or weak ROL traditions.

I therefore propose that the United States borrow the concept of a “judicial council” in the form of an assembly of all Federal judges, which would nominate three qualified persons for the office of AG. The U.S. Senate would then elect a person from this pool to serve as AG for a constitutionally limited period, as well as the AG’s top three deputies.2 Alternatively, this American-style judicial council could be empowered simply to elect the AG for the stated term (for example, nine years to help outlast any specific president).

Such an AG and his/her deputies would oversee and manage the DOJ, yet still be subject to impeachment and removal by Congress for cause. This systemic change requires a constitutional amendment—always a difficult hurdle—but would end a power more reminiscent of kingly governance than of a modern republic.3 It would also greatly increase the independence of the DOJ and improve public trust in the apolitical administration of justice—and so bolster the ROL in America.4

Reinforcing Accountability through a Federal Ombudsperson

America’s ROL could also benefit by creating, as many nations have done since 1809, an Ombudsperson position. An Ombudsman’s exact role and powers vary by country (see, e.g. comparative practices of Nordic countries or characteristics of a classical ombudsperson). The envisaged U.S. Federal Ombudsperson’s office would act as both a recipient of complaints and a mechanism for requesting action by the DOJ, the president, and/or Congress—while existing outside the hierarchy of the DOJ or any Congressional oversight body.

Specifically, this Federal Ombudsperson position could head—to borrow the language of the 25th Amendment—“such other body as Congress may by law provide,” whose duties would be to receive requests to investigate and issue public recommendations regarding, allegations of: (i) corruption, (ii) malfeasance, and/or (iii) serious violations of human rights, by high-ranking Federal officials who are appointed by, and/or who “serve at the pleasure” of, the president. Such recommendations would aim to prompt the DOJ, the U.S. Congress, and/or the president, to take whatever action(s) the Ombudsperson’s Office would deem appropriate in light of its independent investigation(s).

To keep such an Ombudsman’s office from descending into our political system’s partisan mud-slinging, the Ombudsperson would:

  1. Be nominated by a majority of the Governors of the States of the Union;
  2. Be elected or confirmed by a majority of the House, then in session;
  3. Serve only one, non-renewable nine year term; and
  4. Undertake investigations and issue concomitant recommendations, only if he/she is requested to do so by:
    • A majority of either house of Congress;
    • A petition signed by 300,000 U.S. adult citizens;
    • A majority of the governors of the states; or
    • At the request of the AG, if /when the AG deems a matter worthy of scrutiny and unbiased assessment, but not amenable to public prosecution.

Congress could determine to what extent the Ombudsman’s office would be empowered to issue subpoenas, but legislation creating such a mechanism should require Federal agencies to cooperate fully—with very limited exceptions with regard to military secrets and/or ongoing and active criminal investigations by the DOJ.

A counter-argument might be that Congress is already supposed to (and does) engage in oversight of the Executive Branch. Similarly, one could point to “blue-ribbon” panels created to look into this or that issue of import at a given time. Yet, change is needed to effectively shine a “disinfecting” light on possible misdeeds by high-ranking members of the Executive Branch, given that: AGs, as noted, are currently presidential appointees; Congressional investigations can be painted as merely partisan; and “blue-ribbon” panels, while usefully bringing expertise to bear in particular instances (e.g., the investigation into the space-shuttle “Challenger” disaster), are not permanent structures and their creation is always aleatory.

Conclusion

Our Constitution has served us well, but the rise of the “imperial” presidency puts at risk the security and prosperity of all Americans by destabilizing the original schema of checks and balances crafted nearly 250 years ago. Further, any ability by presidents to influence or hamper Federal investigations or prosecutions, and/or to over-ride the outcome of any Federal trial, smacks of monarchical government— something with which our 18th century Founders were familiar, but which is certainly archaic in the 21st century—especially given America’s development of a robust judiciary and legal profession.

Accordingly, this essay respectfully proposes two reforms that would limit the (over)involvement of presidents in the administration of justice, by:

  1. Having the AG nominated for Senate confirmation, or outright selected, by a Judicial Council of all sitting Federal judges; and
  2. Creating an independent Federal Ombudsperson office, empowered to investigate and issue public findings regarding certain types of (alleged) crimes by high-ranking Executive Branch officials, upon the request of a limited set of institutions or a sufficiently large number of adult U.S. citizens.

This writer contends that such modernizing measures—in addition to being more consistent with America as a republic— would help reduce partisan discord in the nation and would improve the administration of justice by providing additional buffers between the inherently political office of the president and our legal system—which has been, and must remain, one of America’s greatest achievements and an inspiration for people everywhere.

Read Alain Norman’s previous publications on the AAROL Blog:

ABOUT THE AUTHOR: Alain Norman, an American attorney and former U.S. diplomat, has worked to promote the Rule of Law and good governance globally for nearly 30 years. Alain began his career with the American Bar Association’s (ABA) Central and East European Law Initiative, where he supported legal reform and constitutional drafting for former Soviet Bloc countries transitioning from communist to democratic systems. Before joining the U.S. Foreign Service, Alain served as the first ABA Liaison to the International Criminal Tribunal for the former Yugoslavia. While serving as a diplomat, Alain continued to contribute to international Rule of Law and constitutional reform efforts. Alain holds a Juris Doctorate from George Washington Law School and a Master of Science in Comparative Government from the London School of Economics and Political Science.

Footnotes:

1 Limits on the presidential pardon power, also monarchical in its essence, would also help minimize its political or corrupt use. That subject, although important, is beyond the scope of the present essay, but see https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-the-pardon-power and https://60minutestonight.com/the-pardon-economy-60-minutes-goes-undercover-inside-the-business-of-seeking-a-trump-pardon/ for more detail.

2 Given today’s DOJ organization, the three top officers to be nominated or elected by a Judicial Council would be the Deputy AG, Solicitor General, and Associate AG.

3 Recent reporting that may illustrate excessive presidential influence includes:

4 Recommended further readings include:

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