Justice and Constitutional Design

At The Hill, Stuart M. Gerson  former Acting Attorney General; Peter D. Keisler former Acting Attorney General; and Carrie Cordero former Counsel to the Assistant Attorney General for National Security.

[W] hile federal law enforcement activities fall under the leadership and guidance of the Attorney General, the criminal justice system functions as an interconnected network of federal, state and local law enforcement, and federal and state judges and courts. Each official and officer in this system takes no oath to any elected official, but instead to upholding the law, and the constitution.

The decision to charge someone with a crime and bring the full weight of prosecutorial power must always be nonpartisan, and never borne of retribution, ambition or malice. Although selection of prosecutors and judges often involves political affiliation and political processes, those selections must be made in a way that brings confidence that justice will be administered without regard to politics. Americans should demand that the Justice Department be led by an Attorney General of sufficient qualifications who has been subject to the rigor and legitimacy of a Senate confirmation.

Above all, our national leaders and political partisans of all stripes must remember that we depend upon our Department of Justice to act in a fair and independent manner and with a constant eye on the rule of law. That department is not the law firm of the chief executive or any political appointee but, instead, is the representative of all the people and the abiding institutions of America.

Finally, no person is above the law. Lawyers can and will argue whether the mechanics of the criminal justice system can reach the highest office, and the details of who in government is subject to what legal process. Regardless of how the courts might resolve these types of questions, the constitution provides a system for removing corrupt officials from federal office. In any case, whether an inquiry as to removal from office derives from the current set of far-reaching investigations or otherwise, the exercise of this authority does not create a constitutional crisis; instead, it is an exercise of constitutional design.