In the aftermath of the FBI search of his Mar-a-Lago estate, former President Donald Trump and many of his supporters have criticized the “politicization” of the Justice Department, accusing Attorney General Merrick Garland of using his law enforcement authority as a pretext for scoring political points against a potential opponent of President Joe Biden’s in the 2024 election.
There was no universe in which a search of Mar-a-Lago was not going to ignite a firestorm on the right.
Garland is, to a large degree, caught on the horns of a dilemma. On one hand, he may genuinely believe that Trump was engaged in egregiously unlawful behavior, or that, at the very least, Trump’s continued possession of the materials seized in the search posed an ongoing risk to the national security of the United States. Either way, adherence to the rule of law would have militated in favor of what eventually transpired. On the other hand, there was no universe in which a search of Mar-a-Lago was not going to ignite a firestorm on the right, or provoke charges of illegitimacy and political retaliation. (Ironically, some have gone so far as to suggest that this is why Garland should have obtained Biden’s approval.)
Many defenders of the search, and of the attorney general, have responded by contrasting the former president’s reputation for carelessness with sensitive documents with Garland’s reputation for honesty and integrity. In the court of public opinion, at least, it’s a stalemate, since neither side can prove that the other is wrong. In that sense, the entire episode reopens the age-old debate over the independence of the Justice Department. And it shows, once again, how that independence depends almost entirely upon the personal integrity of the incumbent attorney general.
The basic problem is that the attorney general serves two masters. He serves at the pleasure of the president, and thus can be fired for any reason, including his refusal to carry out the political (or even personal) whims of his boss. At the same time, as the nation’s chief law enforcement officer, he is also meant to serve the ends of justice — and is supposed to exercise at least a modicum of independence from the prevailing political winds. At least at the Founding, this two-master problem was not a given. When Congress created the federal court system in the Judiciary Act of 1789, it buried the position of attorney general in the last sentence of the last section of the statute, almost as an afterthought. The attorney general was given exactly two duties: representing the United States before the Supreme Court, and providing legal opinions when asked for advice by either the president or other government actors.
The First Congress’ brief reference to the attorney general was also deliberately vague about where in the government that officer would sit. Weeks earlier, when the legislature had created the “great departments” of Foreign Affairs (now State), the Treasury, and War (now Defense), it was clear that these were executive departments, and that their heads — “secretaries” — were to be appointed by, and directly answerable to, the president. In contrast, the 1789 Judiciary Act said nothing at all about establishing a legal department. And it provided only that an attorney general “shall also be appointed,” without bothering to specify by whom.
When Congress created the federal court system in the Judiciary Act of 1789, it buried the position of attorney general in the last sentence of the last section of the statute, almost as an afterthought.
The passive voice was deliberate. The judiciary bill that had initially passed the Senate earlier that summer would have given the power to choose the attorney general to the Supreme Court — reflecting the drafters’ view that the role’s principal responsibility was to the justices, not the president. The House decided to muddle the language, with some members suggesting (with their implicit approval) that the ambiguity would allow President George Washington to name an attorney general himself. Washington did so, nominating Edmund Randolph just two days after signing the bill into law.
Still, it was hardly self-evident that the attorney general should — or would — be wholly subordinate to the chief executive. Most states at the Founding decided to have their attorneys general chosen and supervised by others. To this day, the attorneys general of 45 states are independent of the chief executive: Tennessee’s is appointed by its supreme court; Maine’s is appointed by the state legislature; and 43 are directly elected by the people. Only five states follow the federal model in which the attorney general is subordinate to the chief executive.
The 1789 statute’s ambiguity about the location of the attorney general’s office was also a reflection of Congress’ deep ambivalence about the office’s purpose. Was the attorney general a political advisor to the president? Was he an officer of the Supreme Court? Was he the chief legal adviser to the entire government, with duties and obligations to the courts and Congress that were independent of his relationship with his effective (if not formal) boss? At least initially, no one paid much attention to this debate. As legal historian Susan Low Bloch has explained, “the First Congress did not expect this part-time attorney, with no staff and little power, to play a major role in the emerging federal government.”
Obviously, that understanding has changed dramatically over the years — especially as the federal government’s regulatory power and its authority to safeguard individual rights expanded after the Civil War. Those developments helped to precipitate the belated creation of the Justice Department in 1870 — and the emergence of the department in the 20th century as a font of increasing power and increasing responsibility.
Perhaps no single episode better crystalized this tension than the so-called Saturday Night Massacre, when Attorney General Elliot Richardson resigned in October 1973 rather than carry out President Richard Nixon’s order that he fire Archibald Cox, the first Watergate special prosecutor. Richardson had promised the Senate, as a condition of his confirmation five months earlier, that he would not thwart the Watergate inquiry. He couldn’t keep that promise and abide by his boss’s directive, so he took the honorable way out. Contrast Richardson’s approach with, for example, the efforts of Attorney General Bill Barr during the Trump Administration. Barr is perhaps most famous for his transparent mischaracterizations of the Mueller Report before the Report’s public release. But there were other episodes in which his candor and objectivity were publicly called into serious question as well, including his clumsy effort to remove the Manhattan federal prosecutor in June 2020 (and his misleading public statements about the affair). To be sure, partisans will level the “politicization” charge at members of the party opposite whether or not the current attorney general is perceived to be aboveboard. But one of the questions for those trying to make heads and tails out of the Mar-a-Lago mess ought to be whether Garland has done anything to undermine the public’s faith in his integrity — based on a reputation shaped from nine years of prior Justice Department service and 23 years on the D.C. federal appeals court. That he was appointed by a Democratic President should not conclusively answer that question, one way or the other; the same President who appointed Elliot Richardson also appointed (convicted felon) John Mitchell. Put another way, the right way to understand the objectivity of the Justice Department is to understand the objectivity of its current leader. And as progressive criticisms of Garland have only underscored, his reputation in that respect has, at least thus far, been almost entirely unassailable. Given the current Supreme Court’s understanding of executive power, the tension that can arise from the attorney general’s obligation to his two masters can only be fully eliminated by a constitutional amendment. But as in the case of Elliot Richardson, an attorney general who has the public’s trust can do a lot to mitigate that tension — both by faithfully living up to that reputation while he holds his office, and by stepping aside if and when the moment comes when he no longer believes that he can.
Steve Vladeck
Steve Vladeck is a professor of law at Georgetown Law, whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is co-editor-in-chief of the Just Security blog (@just_security) and co-host of "The National Security Law Podcast" (@nslpodcast). 
