03/16/2007 04:52 pm ET Updated May 25, 2011

Break up the Justice Department

The headlines about the Bush administration's decision to fire several United States attorneys, for partisan political reasons, misses the big picture. The politicization of justice is inherent in the structure of the Justice department. In most other democratic and western countries the job performed by our Attorney General--who is the head of the Justice Department--is broken up into two separate and distinctly different jobs.

First there is the Minister of Justice who is a cabinet level politician with no law enforcement powers or responsibilities. His job is to advise the chief executive about policy, politics and partisanship. It is also to keep his boss in office, get him reelected and hurt his political opponents. There is no pretense of non-partisan objectivity in this highly politicized cabinet position.

Second there is the Attorney General, sometimes called the Director of Public Prosecutions whose role is to enforce the law by investigating, charging and prosecuting defendants. That position is an apolitical one, usually held by a professional prosecutor with extensive law enforcement experience and with no accountability to the president or prime minister. In countries with this division of power, there is no need for "Independent Counsel," "special prosecutors" or the like, since the permanent prosecutor is independent.

The current fiasco at the department of Justice is only one of many examples of partisanship in the administration of justice. It should push us to follow the lead of other democracies in creating two separate positions. The cabinet job, which can retain the constitutional title Attorney General, can be a political and policy position. There would be no danger if the President appointed a political crony, since the Attorney General would not decide whom to investigate or prosecute. That responsibility would be exclusively in the hands of the Director of Public Prosecutions, who would be selected on a non-partisan basis by a panel of judges or others outside the political process.

The time has come to recognize that the framers of our Constitution made a serious mistake by creating the single office of Attorney General to serve two conflicting functions. We should break these two functions into two discreet offices, the way most of the rest of the democratic world has done. We can begin without tinkering with the constitution, by simply having Congress create an Independent Office of Public Prosecution within the Justice Department. The director of that office would be a civil servant appointed for a fixed term by the President with the consent of the Senate. By tradition, that person would be outside of politics and an eminent lawyer of great renown and acceptability to both parties. He or she would not be answerable to the Attorney General on issues of prosecutorial policy or on specific cases, and would be removable only for good cause. He or she would decide which United States attorney to appoint and sack based exclusively on professional criteria.

It is not certain whether the Constitution would have to be amended to accomplish this change. Article II grants to the President the responsibility to "take care that the laws be faithfully executed," but that responsibility may be delegated--as it has been--to the Attorney General.
If Congress were to pass, and the President sign, a law creating a permanent, nonpartisan office of Director of Public Prosecution, I believe it would be held constitutional.

If this legislative solution did not pass constitutional muster or did not work for other reasons, it might be necessary to amend the Constitution so as to create an independent prosecutorial office. The Constitution should never be amended except as a last resort, after all other reasonable legislative and administrative solutions have been tried. But the problems of our current Justice Department and its conflicting roles are so serious, and so likely to get even worse, that we must begin to consider new methods for dealing with them.

The very idea that the Bush White House would have seriously considered sacking every single United States attorney and replacing them with political cronies and partisan hacks who could be counted on to go after Democrats and spare Republicans is frightening. We must restructure the system to make it impossible for any President--Republican or Democrat--to abuse the legal system in so partisan a manner.