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We Need An Elected Attorney General Who Has the Power to Appoint the Director of the FBI

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We Need An Elected Attorney General Who Has the Power to Appoint the Director of the FBI

Joel D. Joseph 2017

We need an independent judiciary, including an elected Attorney General who has the power to appoint the head of the Federal Bureau of Investigation. As we elect attorneys general in nearly every state, we should elect the United States Attorney General. The office of Attorney General has been a political, not legal, position for far too long. The recent political firing of FBI Director James Comey highlights the need for an independent Department of Justice. With an independent Attorney General there is no need for a special prosecutor.

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I have done battle with the Department of Justice for over forty years in civil cases, from John Mitchell to Ed Meese, to Alberto Gonzales and Jeff Sessions. And I can report that the Justice Department does a horrendous job, representing government agencies no matter how illegal or outrageous the conduct that was committed in the name of the United States.

I was the lead attorney on the Hungarian Gold train case for seven years. In that case the Justice Department (or as I have always called it, the Injustice Department) defended (at first under Clinton's Attorney General, then under George W. Bush's Attorneys General) the U.S. Army's failure to return property seized during World War II that belonged to Hungarian Jews. Although the property was original stolen by the Nazis, the United States Army wrongfully and illegally refused to return the property to its rightful owners. Finally, after pressure from Congress and the New York Times, the government settled the case and issued a rare formal apology.

An elected attorney general would be independent of the White House--he or she could not be fired by the President. The elected attorney general would be responsible to the people who elected him or her. As the FBI is part of the Justice Department the elected attorney general would appoint the head of the Bureau.

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Of the 50 state attorneys general, 43 are elected. In five states the attorney general is appointed by the governor (Alaska, Hawaii, New Hampshire, New Jersey and Wyoming). In Maine, the attorney general is selected by secret ballot of the legislature, and in Tennessee, the state Supreme Court appoints the attorney general.

Attorney General Jeff Sessions, who claimed that he recused himself from the Russian inquiry, nonetheless assisted President Trump in his removal of James Comey as head of the FBI. Neither the Attorney General nor President Trump had the right to fire the FBI director. Eighty-two years ago, the U.S. Supreme Court ruled against Franklin Roosevelt's firing of an FTC Commissioner. Humphey's Executor v. United States, 295 U.S. 602 (1935). Director Comey, like Commissioner Humphrey, was appointed for a designated term and could only be fired for cause. The cause cited by the President was clearly subterfuge--the real reason was to stop Comey's investigation of the Trump campaign's connection with the Russians. James Comey could have filed suit to challenge his termination, but has apparently decided not to challenge President Trump's actions, and to quietly return to his home in Connecticut.

Let the people decide who should enforce our laws. An independent Attorney General would tell federal agencies who are sued that the agency must compensate individuals or entities that they harmed when the agency violated the law. An independent elected Attorney General would no longer be the President's puppet, crony or brother. An independent Justice Department and and independent FBI would investigate alleged crimes committed by occupants of the White House without fear of being fired and would improve the public's level of confidence in the fairness of the legal system.

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Chairman, Made in the USA Foundation, economist and lawyer, author of ten books and hundreds of articles.

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