The focus on Atty. Gen. Janet Reno and the role of the independent counsel ought to be more than an opportunity for partisan bickering. We need a re-examination of the way we select the U.S. attorney general and a careful appraisal of the need for independent counsel.
Shortly after the election of John F. Kennedy as president, Robert Wallace of the president-elect’s staff called and asked me what I thought about the president naming Robert Kennedy as attorney general. I said I had great respect for Bobby, but I felt that the attorney general, because of the sweeping powers of that office, should not be too closely connected to the president.
It turned out the president’s brother did an excellent job, but the principle of some distance between the two still is sound. The attorney general is not the counsel to the president, but rather the overseer of a vast system of justice that includes the FBI, the Immigration and Naturalization Service and U.S. prosecutors. The potential for abuse is great.
I have no criticism of Janet Reno. I worked with her and I found her performance solid.
But the ideal attorney general appointment was the naming of Edward Levi by President Gerald Ford. Levi left the presidency of the University of Chicago to take the post. No one in either party ever hinted that he made decisions on a partisan basis. And he handled his role with great care.
Atty. Gen. William French Smith, a Ronald Reagan appointee, did not have the same initial acceptance, but there emerged a general belief at the end of his term that he had served well. His successor, Ed Meese, was regarded as primarily a political crony of the president–not a bad thing but not good in that office.
Because attorneys general too often have political bags to carry, the office of independent counsel was created to avoid areas where there were possible conflicts of interest. I supported its creation.
Independent counsels have a mixed record; some did a good job, but others spent multimillion-dollar budgets for limited ends. They sometimes used cannons to kill a sparrow.
How do we rectify this?
My suggestion is that we form a commission to nominate an attorney general. That would make the attorney general more independent and then we would be able to eliminate the office of independent counsel.
I recommend that the four congressional leaders (two Democrats, two Republicans) each name one distinguished attorney to a seven-member commission; the chief justice of the U.S. Supreme Court name two; and these six appointed members should select a retired federal judge to serve as chair of the commission.
That body should send three names to the president for consideration. The president can nominate one to serve as attorney general or can reject all three and ask for a new list. The nominee must be confirmed by the Senate and then would serve a seven-year term, overlapping administrations.
It is a procedure somewhat similar to the one we follow for selecting the comptroller general, who serves an 11-year term.
Will this procedure make the attorney general absolutely independent from the president? No. Does it give him or her a greater degree of independence and less of a sense of personal obligation to the president? Yes.
We have had many fine people serve in U.S. attorney general office and good people serve as independent counsel. But the weakness of the present structure should be recognized, and now is a good time to make sensible changes.
