Prosecution among Friends: Presidents, Attorneys General, and Executive Branch Wrongdoing.
In the decades since Watergate, every administration has faced charges of criminal misconduct. It is a fact of life for the modern presidency, which operates under greater public scrutiny, a proliferation of ethics codes and anticorruption laws, and an increase in offices charged with enforcing them. In general, either the Federal Bureau of Investigation (FBI) or Justice Department investigates those charges. But in some cases, special prosecutors or independent counsel have been named. David Yalofs book examines the conditions under which that decision is made. He aims to create "a framework to assess the need for special prosecutors" (p. 25).
It is an important question. A special prosecutor increases public trust in the integrity of an inquiry, but there is a potential for abuse stemming from unchecked prosecutorial discretion and lack of accountability. Yalof generally favors routine procedures, but one critical consideration is who serves as attorney general. He seeks to link "the type of attorney general" and "the process by which the Department of Justice investigates executive branch wrongdoing" (p. 7).
He delineates three types of attorneys general, according to their relationships with the president. Least connected is the "outer circle attorney general," one who is in the strongest position to head a "neutral investigation and prosecution" of executive misconduct (p. 27). The "inner circle attorney general," with personal or professional ties to the president, is less able to function independently in the absence of political checks to ensure impartiality. When an attorney general comes from the White House itself--the "Oval Office attorney general"--fair investigation "becomes a virtual impossibility" (p. 28).
In 26 case studies, Yalof examines the interplay of each type with factors that contribute to the risk of investigatory bias: when the alleged misconduct involves the president, vice president, family members, or officials in Justice or the FBI. Political considerations also are salient: whether an election is upcoming, government is unified, or allegations implicate the current or prior administration.
The book has several strengths. It is well written and evinces solid research, including use of archival documents. Yalof employs the case study method to good effect. By presenting so many, he necessarily treats them superficially, with some relevant details neglec0ted. But he is looking for broad patterns. His selections are meant to create "a rich tableau" (p. 32) of the choices facing an attorney general, and in that effort, he succeeds.
Yalof also contributes to the literature on the unique nature of the attorney general's office, located at the nexus of law and politics. He criticizes customary senatorial deference to the president's choice, particularly Senate disinterest in the nominee's independence of the White House. Since the "success or failure of the investigatory process... begins with the choice of attorney general" (p. 7), greater Senate scrutiny is essential. His concluding chapter recommends scrutiny on a par with that of a Supreme Court nominee. He even advocates that the nominee present a list of potential special prosecutors, should the need for one arise (pp. 146-47).
The book, however, does raise some concerns. First, individual officeholders tend not to fit neatly into classification schemes. For example, Yalof classifies Carter's second law officer, Benjamin Civiletti, as an "insider attorney general," due to his prior service as deputy attorney general (p. 55). Similarly, William Barr is classified as an insider, because he had been an assistant and deputy attorney general under George H. W. Bush. Yet these classifications appear inconsistent with Yalofs description of the "insider attorney general" as having such "longstanding personal or professional ties" with the president such that "a neutral and fair investigation of executive branch corruption" may not be possible (p. 27). Surely, prior service in the Justice Department, in itself, even in a political position, would not engender a "specter of cronyism" that undermines the appearance of impartiality (p. 52).
Another problem is that insufficient supporting evidence is provided to justify some classifications. Central to Yalofs typology is the attorney general's "past connections to the president and other White House officials at the time of appointment" (p. 45), yet he does not always include this information. For example, he writes that Ronald Reagan wanted William French Smith as his attorney general, yet he provides no details of their prior relationship. Nor does he clarify the relationship between George H. W. Bush and his first attorney general, Richard Thornburgh.
A third critique of the book concerns the normative presumption in favor of "outer circle attorneys general," and against "inner circle" ones. Yalof uses proximity as a proxy for lack of independence. But such is not necessarily the case. Indeed, as he notes, Robert Kennedy's close relationship with the president "rendered him fearless, rather than beholden to his bosses" (p. 139). In my own research, I found similar instances in the case of Jimmy Carter's first law officer, Griffin Bell, another "inner circle" attorney general (Nancy V. Baker, Conflicting Loyalties: Law and Politics in the Attorney General's Office, 1789-1990 [University Press of Kansas, 1992]).
An "outer circle" attorney general may not be effective, except in the narrow area of alleged or real executive malfeasance. As outsiders, they may be bypassed when the White House seeks advice, as happened with Janet Reno on judicial appointments, and with Edward Levi after the seizure of the SS Mayaguez.
In addition to rendering advice, attorneys general and their staffs play a legitimate role in public policy. The book ignores this policy dimension, especially in its proposal to require bipartisan staffing at the top of Justice (p. 147).
Fair investigations and prosecutions of executive misconduct are critically important, a necessity Yalof thoroughly explores. But they exist in the context of everything else that the attorney general and the Justice Department must do to serve an elected administration.
--Nancy V. Baker
New Mexico State University
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|Author:||Baker, Nancy V.|
|Publication:||Presidential Studies Quarterly|
|Article Type:||Book review|
|Date:||Mar 1, 2014|
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