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chapter 2 legal regimes, Attorneys General, and executive Accountability The position of US attorney general, like that of many other chief law enforcement officers holding parallel positions in state governments, presents a contradiction of interests and purposes. As a presidential appointee and member of the cabinet, the attorney general plays a critical role in helping an administration formulate and implement legal policy in line with the president’s overall goals. The attorney general’s employment status within the federal government is unambiguous: as a cabinet-level executive officer and chief lawyer of the US government, he or she serves at the pleasure of the president of the United States, and can be removed by the chief executive at will.1 At the same time, as the nation’s chief law enforcement officer, the attorney general draws on his or her own independent base of power to act directly in the public’s best interest. Since it was first established by Congress in 1870, the Department of Justice has served attorneys general in discharging their duties, which include investigating and prosecuting violators of federal law. And rarely does the attorney general face more intense cross-pressures than when his or her office must exercise its investigative and prosecutorial powers against members of the executive branch. The implications of this conflict are profound. Even the proper and careful pursuit of allegations against executive branch officials may prove embarrassing or politically damaging to the president whom the attorney general must serve. Just as problematic, the White House may reap partisan political gains if alleged wrongdoing occurred while the opposition party was in control, inviting just the opposite form of pressure on Justice Department officials. And when the wrongdoing hits particularly close to home, such as when some of those targeted reside within the FBI or the Justice Department, the conflict of interest is most acute. The appointment of a special prosecutor (whether someone from within the Justice Department or outside it) offers one way out of the dilemma, but it brings with it an additional set of headaches, including the specter of an unaccountable or “rogue” prosecutor with no competing Legal Regimes, Attorneys General, and Executive Accountability • 35 obligations or demands on his time and budget. The attorney general must weigh these and other considerations against the realities of a statutory regime that may encourage or discourage such special appointments by modifying the conditions that attach to them. The long history of special prosecutors in the United States offers some instruction on the limitations inherent in going this more controversial route. legal structures and executive Accountability, Past and Present Until the early 1970s, special prosecutors appointed to investigate and prosecute high-profile cases were few and far between. In 1875, Pres. Ulysses Grant appointed John Brooks Henderson, a former Democratic representative and senator from Missouri, as a “special US Attorney” charged with indicting and trying the so-called “Whiskey Ring.” A set of Midwest whiskey distillers based in St. Louis had allegedly conspired to funnel money to federal officials, including many federal tax collectors.2 Grant’s attorney general, Edward Pierrepoint , eventually fired Henderson for making impolitic comments, and the special prosecutor experiment appeared to stall for the half century to follow. The next president to issue a formal call for a special prosecutor was Calvin Coolidge, who did so in response to the Teapot Dome scandal of the 1920s. Coolidge actually appointed two special counsels to investigate the bribery scandal involving Secretary of the Interior Albert Fall, accused of accepting cash gifts and no-interest loans in return for granting private companies leases to drill for oil on US government land in Wyoming and California during the Harding administration. Coolidge ordered his Justice Department to begin investigating the scandal in 1924; yet because deep concerns arose over Attorney General Harry Daugherty’s close relationship with Fall, Coolidge appointed both Democrat Atlee Pomerene and Republican Owen Roberts to investigate the matter as “bipartisan counsel.” President Coolidge had insisted that the two special counsels be vetted and confirmed by the Senate, and that meant going through several candidates before finding two who could survive Senate scrutiny and were willing to do the job. According to Burl Noggle’s account of the process, “bitter and aggressive debate raged over confirmation,” as some complained the two nominees did not know enough about public land law, while others complained about their training.3 According to Leslie Bennett of the Brookings Institute, history has largely judged the use...

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