Balance Between Politics and Law Weighed by Six Former Attorneys General

Former attorneys general discuss the challenges of the job. Left to right, Benjamin Civiletti, Edwin Meese III, Michael Mukasey and Dick Thornburgh.

Six former attorneys general gathered at the ABA Annual Meeting in Chicago Friday for a lively, and often times humorous, discussion that offered insights into the day to day requirements of the job, as well as its tensions, challenges and opportunities.

The program, “Lessons from History: A Conversation with Former Attorneys General” featured Edwin Meese III, Dick Thornburgh, William P. Barr, John Ashcroft, Michael Mukasey and Benjamin Civiletti.  The panel was moderated by Bob Rothman, chair of the 76,000-member Section of Litigation.

Focusing on the tension between political considerations and the letter of the law, Rothman asked the panelists to share their thoughts on giving legal advice to the President.

“The President is not above the law, but he is the President, so he’s above you!” stated John Ashcroft, eliciting a roar of laughter from the crowd.

Speaking at length about the responsibility of the office, Ashcroft noted that an attorney general is still a part of the Administration.  While the attorney general should not allow politics to intrude on the administration of justice, he must still be a team player. “But if you really have a conviction, you vote with your feet,” he said.

Barr noted that “Things change if members of the Administration are under investigation,” noting that under those circumstances it is important to step back. “The chips have to fall where they may.”

Meese pointed to the growth in authority of the White House Counsel’s Office, stated he wasn’t sure whether this relatively new power was being achieved under “presidential direction” or by “bureaucratic initiative.” Regardless, the trend of the President to rely heavily on the White House Counsel’s office, as opposed to the attorney general, raised another murky area.

Summing up the critical balance faced by an attorney general, Ashcroft said “You make the right decision, and then you keep working to make it right.”

Turning to a hot legal topic, Rothman asked whether Attorney General Eric H. Holder Jr. should investigate the government’s interrogation practices in the wake of the events of September 11.

“[Holder] has to weigh the purpose of the investigation against the likelihood of the investigation actually producing cases that can be prosecuted,” said Civiletti. “In this instance, I would be generally inclined, but I am not sure it fits those standards.”

Noting that the country has a new administration and new approaches to the difficulties in Iraq and Afghanistan, Civiletti said, “Let the record stand where it stands. Let’s not divert our energies to a hunt.”

Mukasey said he did not want to slide into an ends-versus-means conversation, but noted that while the attorney general is tasked with directing investigations for crimes Congress could lead the type of investigation proposed.

“It’s a tender arena, but you have to give the President the benefit of the doubt,” said Ashcroft.

The one issue panelists agreed on was the chilling effect and bad precedent that prosecuting lawyers for legal opinions would have on the profession.

The program was sponsored by the Section of Litigation and the Division of Government and Public Sector Lawyers