Alan Dershowitz: Don’t blame Bill Barr — he holds conflicting roles

The criticism of Attorney General William Barr fails to understand the two very different, and sometimes incompatible, roles an attorney general is supposed to play in our constitutional system. His first role is as a member of the Cabinet, seventh in the line of succession to the presidency. In this key role as a Cabinet member, the attorney general owes the president a high degree of loyalty. He is supposed to be a partisan, helping to reelect the president to office and to fulfill the White House political agenda.

Because this role is so central, presidents have generally appointed loyalists to that Cabinet position. President John Kennedy appointed his brother Robert Kennedy, President Ronald Reagan appointed his personal lawyer William French Smith, and President Barack Obama appointed Eric Holder, a close political friend and loyalist. Any Cabinet member shows disloyalty to the president and his political agenda risks getting fired.

{mosads}This characterization of the role of attorney general would be simple and straightforward, if he did not have a critical additional role. That additional role is to be the chief law enforcement officer of the United States. Within that role, the attorney general should be politically neutral, totally objective and nonpartisan. He cannot just selectively prosecute enemies of the president, or fail to prosecute friends of the president The goal as chief law enforcement officer is not to help the president get reelected but to enforce the federal laws, most especially the criminal laws, independently and without regard to the wishes of the president.

In most cases, these very different roles present no conflict. The attorney general, and his deputies and line attorneys, make prosecutorial decisions based on the facts and the law. They hire assistant United States attorneys based on their skills as prosecutors, not based on their party affiliation or voting record. In nearly all such cases, the president has no interest or stake in the outcome of prosecutorial decisions. So there is no conflict.

However, in this age of growing weaponization of criminal justice, the conflicts between these two different roles of the attorney general have increased and become more visible. This is especially the case when the president himself or those around him are the possible targets of law enforcement. In such cases, what should be the role of the attorney general? To be a loyal Cabinet member? To be a neutral prosecutor?

The answer may sound simple because the rule of law requires objective and nonpartisan law enforcement. But such a simple, indeed righteous, answer ignores the role of attorney general as loyal Cabinet member. The president is constitutionally entitled to the loyalty of his Cabinet, while the public is entitled to nonpartisan law enforcement. There lies the conflict.

Most Americans appropriately demand that nonpartisan law enforcement has a higher constitutional status than Cabinet loyalty, and they may be right. However, to ignore the constitutional role of the Cabinet is to deny that a conflict exists. This conflict represents a fundamental flaw in our constitutional system not present in many other Western democracies. In many constitutional democracies, the mixed and conflicting role that the attorney general plays is divided into two separate government offices.

First, there is the political adviser to the head of the government, often called a minister of justice. That minister, like other ministers, owes loyalty to his prime minister or other leader. Second, there is the independent chief prosecutor, sometimes called the director of public prosecution and sometimes, as in Israel, called the attorney general. The first is a political position designed to assist the head of government in carrying out his responsibilities. The second is a nonpolitical position designed to assure that the enforcement of criminal law remains objective and nonpartisan.

It would be far better if the United States adopted a system that divides the conflicting roles of the attorney general. It is not clear whether our Constitution would permit such a division of responsibilities. However, it is worth considering, since the role of the attorney general, especially when it comes to investigating the president or members of his administration, is untenable. In the meantime, do not blame any specific attorney general, including Barr, for having dual loyalties. That is his current job description.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. His new book is “The Case Against the Democratic House Impeaching Trump.” You can follow him on Twitter @AlanDersh.