                                                                     A pril 11, 1977


77-21      MEMORANDUM OPINION FOR THE
           PRESIDENT
           Proposals Regarding an Independent Attorney
           General1


   This is in response to your request that legislation be prepared that
would provide that the Attorney General should be appointed for a
definite term and should be removed from office only for cause of
malfeasance. For the reasons discussed below, there is serious doubt as
to the constitutionality of such legislation. However, within the limits
set by the Constitution, there are steps which can be take further to
remove the Attorney General and the Department of Justice from
political influence.
   The Constitution establishes the framework within which the pro ­
posed limitation on the removal of the Attorney General must be
examined. The first sentence of Article II vests the executive power of
the Government in the President and charges him with the general
administrative responsibility for executing the laws of the United States.
Article II, § 2, provides that, with the advice and consent of the Senate,
the President shall select those persons who are to act for him in
executing the laws. The closing statement of Article II, § 3, the last
section of the Constitution dealing with the President’s powers and
duties, emphasizes the President’s responsibility: “He shall take Care
that the Laws be faithfully executed.” Thus, the President is given not
only the power, but also the constitutional obligation to execute the
laws.
   In Myers v. United States, 272 U.S. 52 (1926), the Supreme Court
held that the President had exclusive authority under the Constitution
to remove a postmaster, an executive official, notwithstanding statutory
attempts to restrict this power. The Court viewed the effort by Con­
gress to restrict the discretionary right of the President to remove an
officer he had appointed and for whose action he was responsible as
inconsistent with basic mandates of the Constitution. Significantly, the

   1 T his m em orandum was prepared by the Office o f Legal Counsel and approved by the
A ttorney G eneral

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Court reasoned that “to hold otherwise would make it impossible for
 the President, in case of political or other differences with the Senate
or Congress, to take care that the laws be faithfully executed.” The
constitutional underpinnings of this decision stand for the proposition
that the President’s freedom to remove executive officials cannot be
altered by legislation.
   The Attorney General is the chief law enforcement officer of the
 United States. He acts for the President to ensure that the President’s
constitutional responsibility to enforce the laws is fulfilled. To limit a
President in his choice of the officer to carry out this function or to
restrict the President’s power to remove him would impair the Presi­
dent’s ability to execute the laws.
   Indeed, the President must be held accountable for the actions of the
executive branch; to accomplish this he must be free to establish policy
and define priorities. Because laws are not self-executing, their enforce­
ment obviously cannot be separated from policy considerations. The
Constitution contemplates that the Attorney General should be subject
to policy direction from the President. As stated by the Supreme Court:
“The Attorney General is . . . the hand o f the President in taking care
that the laws of the United States . . . be faithfully executed.” Ponzi v.
Fessenden, 258 U.S. 254, 262 (1921). Removing the Attorney General
from the President’s control would make him unaccountable to the
President, who is constitutionally responsible for his actions.
   It is our conclusion that the framers o f the Constitution intended for
the functioning of the executive branch to rest squarely on the integrity
of the President. He alone is elected by, and thus represents, all the
people. For this fundamental reason it is his policy decisions that are to
control as he undertakes to execute the laws.2 Two of the Supreme
Court’s many relevant statements in the Myers case are particularly in
point:
      The degree of guidance in the discharge of their duties that the
      President may exercise over executive officers varies with the
      character o f their service as prescribed in the law under which
      they act. The highest and most important duties which his subordi­
      nates perform are those in which they act for him. In such cases
      they are exercising not their own but his discretion. . . . Each
      head of a department is and must be the President’s alter ego in the

    2 T h e follow ing was said by y o u at A ttorney General Griffin Bell’s swearing-in on
January 26, 1977: “ T o the m axim um degree possible, the A ttorney G eneral should
personify w hat the President o f the United States is—attitudes, philosophies, com m it­
m ents—because here is an extension o f the P resident’s attem pt to provide equality of
o p p o rtu n ity and a sense of trust in the core o f our A m erican governm ental institu­
tions. . .        T his statem ent concisely sum m arizes the rationale underlying the constitu­
tionally based prohibition on legislative restrictions of the President’s pow er to rem ove
such an official.

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    matters of that department where the President is required by law
    to exercise authority. 272 U.S. at 132-133. [Emphasis in original.]
     *         *        *        *         *        *        *

    Then there may be duties of a quasi-judicial character imposed on
    executive officers . . . , the discharge of which the President
    cannot in a particular case properly influence or control. But even
    in such a case he may consider the decision after its rendition as a
    reason for removing the officer, on the ground that the discretion
    regularly entrusted to that officer by statute has not been on the
    whole intelligently or wisely exercised. Otherwise he does not
    discharge his own constitutional duty of seeing that the laws be
    faithfully executed. 272 U.S. at 139.
   Even though we have concluded that legislation establishing a defi­
nite term of office for the Attorney General and restricting the Presi­
dent’s power to remove him only for cause probably would be held
unconstitutional, it might be argued that these proposals could be im­
plemented by some method other than legislation, i.e., by Executive
order. Because the restrictions would be imposed not by Congress but
by the President himself, and because he legally could revoke or super­
sede the Executive order at will, it could be argued that the Executive
order would simply constitute a voluntary waiver by the President of
his constitutional power to remove the Attorney General. However, by
restricting his power to remove the Attorney General, the President
would necessarily be restricting his influence over that Cabinet officer.
Indeed, that would be the declared purpose of the restriction. And by
restricting his influence, he would be restricting his ability to fulfill his
constitutional responsibility to ensure that the laws be faithfully execut­
ed. That constitutional responsibility for the execution of the laws
cannot be waived. Therefore, it is our view that an Executive order, as
well as legislation, restricting the President’s right to remove the A ttor­
ney General would be constitutionally suspect.
   We have not addressed specifically the question whether the A ttor­
ney General could be placed in some sort of separate, non-Cabinet
status with a fixed term and subject to removal only with consent of
the Congress. This would amount to an attempt, in effect, to remove
the Attorney General from the executive branch. The foregoing discus­
sion establishes that the President must have control over the country’s
chief law enforcement official because of the President’s constitutional
duty faithfully to execute the Nation’s laws. Having reached this con­
clusion, it follows that there is no method, short of a constitutional
amendment, to separate the Attorney General from Presidential con­
trol. One illustration of the constitutional problem raised by such a
proposal is that if the Attorney General is removed from the executive
branch he may become overly responsive to Congress, by virtue of the
appropriation process, to cite only one example, and this would clearly
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affect the separation of powers among the three branches that is estab­
lished by the Constitution. Analogous problems are easy to imagine.
   There is a legal maxim that hard cases make bad law. We believe
that implementing the specific proposal mentioned above would be
permitting a hard case, W atergate and its aftermath, to produce bad
law. It is the responsibility o f the Chief Executive to make certain that
the system, particularly including the Justice Department, is not subject
to abuse for political purposes. That involves trust and integrity—two
things no law can provide or guarantee. The relationship between the
President and the Attorney General is governed by the Constitution.
The fundamental aspects o f this relationship, that is, the President’s
pow er to appoint and remove Executive officers in his discretion,
cannot be altered without impairing the President’s constitutional obli­
gations to control the executive branch and faithfully execute the Na­
tion’s laws.
                                                 G r if f i n B. B e l l
                                                        Attorney General




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