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Is the attorney general the president's lawyer? Or the public's?

Attorney General William Barr testifies before the Senate

Attorney General William Barr testifies before the Senate Judiciary Committee on the Justice Department's investigation of Russian Interference with the 2016 presidential election on Capitol Hill in Washington on May 1. Credit: AFP / Getty Images / Nicholas Kamm

WASHINGTON — As Attorney General William Barr faces calls to resign from congressional Democrats over his handling of the Mueller report release, the question of who the attorney general is primarily expected to serve — the president or the public — has once again become a point of contention. 

Is the U.S. attorney general expected to be the president’s defender-in-chief, or is the office holder solely duty bound to the American public he or she was tapped to represent?

“The position of attorney general is one of conflicting loyalties,” said David Yalof, author of the book “Prosecution Among Friends: Presidents, Attorneys General, and Executive Branch Wrongdoing.” “Loyalty to the president who appointed him or her to carry out their agenda, and loyalty to the Justice Department and the rule of law … lots of presidents have dealt with it quite differently.”

Democrats have argued that Barr in five months as attorney general has acted more like President Donald Trump’s personal attorney than the nation’s chief law enforcement officer. They contend Barr’s rollout of special counsel Robert Mueller’s final report — issuing a four-page summary before releasing a redacted version of the 448-page report — was designed to minimize the report’s most damaging details involving Trump.

"He is the attorney general of the United States of America, not the attorney general of Donald Trump,” House Speaker Nancy Pelosi (D-Calif.) told reporters recently.

Barr has brushed aside Democrats’ complaints. At a Senate Judiciary Committee hearing last week he defended his decision to release his own summary first rather than release summaries of the report that had been written for public consumption by Mueller’s team.

“I did not believe that it was in the public interest to release additional portions of the report in piecemeal fashion, leading to public debate over incomplete information,” Barr told lawmakers.

Despite Barr’s assurances that his work has been apolitical, Democrats continue to point to Trump’s remarks in the Mueller report to make the case that the president, who often berated his former Attorney General Jeff Sessions for recusing himself from the Russia probe, has long sought an attorney general to fight for his own interests.

The report, drawing from the sworn testimony of former White House Counsel Don McGahn, notes: “After the President learned of Sessions’ recusal from the Russia investigation, the President was furious and said he wanted an Attorney General who would protect him the way he perceived Robert Kennedy and Eric Holder to have protected their presidents. The President also said he wanted to be able to tell his Attorney General ‘who to investigate.' ”

Former Justice Department officials and historians say while past presidents have varied in their appointments — some tapping political allies, while others promoted longtime civil servants with no close ties — there has been a long-standing tradition that the Justice Department runs its investigations independent of the Oval Office, to prevent the politicization of the nation’s top law enforcement agency.

“It’s extremely a major violation of the norms for the president to come in and say ‘prosecute so and so’,” said Nancy V. Baker, author of “Conflicting Loyalties: Law and Politics in the Attorney General's Office”

Baker, who reviewed the work of decades of former attorneys general for her book, said presidents have generally given their attorneys general “broad policy related directions” about the administration’s criminal justice priorities, but have largely avoided directing the Justice Department’s investigations.

Yalof, a political-science professor at the University of Connecticut, said that after the Watergate scandal toppled Richard Nixon’s presidency, spurring widespread distrust in the Oval Office, “presidents understood much better that having the attorney general be close to the president could actually end up being a political problem because people would not necessarily trust the outcome” of their investigations.

Former White House Counsel Don McGahn, in testimony detailed in the Mueller report, recalled Trump complained after McGahn and then-White House adviser Stephen Bannon urged him not to discuss the Russia probe with Sessions.

“You’re telling me that Bobby and Jack didn’t talk about investigations? Or Obama didn’t tell Eric Holder who to investigate?,” Trump said, according to the Mueller report.

Baker, a professor emerita of political science at New Mexico State University, said that although John F. Kennedy tapped his brother Robert Kennedy to lead the Justice Department, Robert Kennedy’s actions were sometimes at odds with his brother’s desires.

Baker said on two occasions Robert Kennedy recused himself from high-profile investigations involving Kennedy backers. He passed the investigations — one dealing with kickbacks allegations surrounding a former New York Supreme Court Judge, and the other into a Kennedy family legal adviser’s finances — to other longtime Justice Department attorneys.

“Those are two examples of Bobby Kennedy, who was a politically active attorney general, explicitly not getting involved, not taking advice from his brother who to prosecute, and in fact, when it was someone who was tied to his brother’s success politically, or an important family friend, he recused himself,” Baker said.

Obama era officials have pushed back on Trump’s notion that Obama directed Holder’s investigations.

Former acting Attorney General Sally Yates, an Obama holdover who briefly served under Trump, told NBC’s “Meet the Press” last month that the attorney general “is not the president’s lawyer.”

“The Department of Justice is not just another federal agency,” said Yates. “And the attorney general is not the president's lawyer, and I recall, when I was named United States attorney, we were all called to the White House for what was, essentially, a photo op with President Obama, and he came in and the first words out of his mouth were, ‘I may have appointed you but you don't represent me. You represent the people of the United States.’ And that's the way it's supposed to be.”

Ronald Weich, dean of the University of Baltimore Law School, and a former assistant attorney general under the Obama administration, said in an interview “the accusation that President Obama told Attorney General Holder who to investigate is false, ignorant and outrageous. In those years, there were firm policies and procedures that prevented the White House from directing or influencing federal criminal law investigations.” 

Weich added: “The attorney general has a multifaceted role. He or she is a member of the president’s cabinet and properly carries out the administration’s policy goals. But there is a long and valuable tradition of DOJ independence when it comes to the conduct of federal law enforcement. It is improper for the White House to become involved in pending investigations or specific criminal cases.”

Barr, who previously served as attorney general under the late President George H.W. Bush, also weighed in on his perception of the office’s role, telling lawmakers in his January confirmation hearing: “The attorney general must ensure that the administration of justice — the enforcement of the law — is above and away from politics.”

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