Recent news reports describe the President chastising his Attorney General Jeff Sessions for disloyalty. According to the New York Times, after learning that a special counsel had been appointed, President Trump accused Sessions of “disloyalty.” Critics insist that the President has the right to demand loyalty of every other member of his cabinet but not of the Attorney General. The Attorney General is different, these critics insist, because he is the chief law enforcement officer of the United States. The Atlantic‘s David A. Graham, for example, criticized Trump’s demand for unconditional “loyalty,” saying that, “for Trump, there is only one loyalty: to the president himself. When his aides and staffers make the mistake of following any other principle—rule of law, standard ethics policies, U.S. alliances—that might conflict with the principle of loyalty to Trump, the president becomes enraged.”
Well, the issue is far more complex, especially when it comes to the office of Attorney General. The complexity results from a fundamental mistake the framers of our Constitution and legal system made at the founding of our nation. Most democracies divide the role of our Attorney General into two distinct offices: the first, often called, the Minister of Justice, is an advisor to the Chief Executive. His or her role is to be loyal to the President or Prime Minister. He serves at their will, and is part of the governing executive. The president is absolutely entitled to demand complete loyalty from his Minister of Justice.
Then, there is a second office, sometimes called, Director of Public Prosecution, chief prosecutor, or attorney general. That office, and the person who holds it, is supposed to be completely independent of the executive. Indeed, it is supposed to serve as a check on the executive. No chief executive is entitled to expect loyalty from the chief prosecutor especially if that prosecutor is investigating him or his colleagues. The Chief Executive is entitled not to loyalty, but to independence, integrity and fairness.
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