By Stephen Winham
“Senator, I believe the attorney general or the deputy attorney general has an obligation to follow the law and the Constitution and to give their independent legal advice to the president.” [Sally Yates in reply to current U. S. Attorney General Jeff Sessions during her Senate confirmation hearing as Deputy U. S. Attorney General, March 24, 2015].
“My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts,” … “At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities, nor am I convinced that the executive order is lawful.” [memo to her staff before Sally Yates was fired as Acting Attorney General, January 30, 2017]
Shortly after he was sworn in, on January 30, 2017, new Acting Attorney General Dana Boente released a statement rescinding Yates’ order and vowing to “defend the lawful orders of our president.”
I’m not an attorney, nor do I play one on TV (though there is an attorney named Stephen Winham in St. Augustine, Florida), but I firmly believe the roles of both the U S. and our state’s attorneys general are often misunderstood and, sometimes, misrepresented. We repeatedly hear the attorney general is the “people’s attorney” – and, to a large extent, that is true. However, notwithstanding anything else they may or may not do, attorneys general are, primarily, the government’s attorneys.
In addition to upholding the constitution and statutory laws, AGs are sworn to represent and defend the government. They are, in other words, government’s in-house law firms.
So how can any attorney represent any entity and not also represent its sitting chief executive?
It is important to remember that we have a judicial branch of government. Attorney General opinions are just that—opinions. Only through the judicial system are legal disputes ultimately resolved. While justice departments can and do provide legal guidance, they are not the final arbiters on questions of the law, itself. In a true legal sense, the judicial branch of government is designed to be a direct servant of the people.
Departments of justice, both state and federal, are executive, not judicial branch departments. We have sometimes allowed the U. S Justice Department and our own attorney general to assume judicial powers they don’t have. Attorney general opinions are often treated as if they are judicial rulings. They clearly are not. To the extent departments of justice enforce the law, they are subject to the court system in the judicial branch like everybody else.
In the first quote above, Yates answered correctly. It is certainly the responsibility of the attorney general to give independent advice to the president. If I hire an attorney, I certainly expect that person to give me “independent” legal advice. What value do I get from an attorney if I expect him or her to simply validate everything I say or do? That would hardly constitute sound legal representation. And, even if I have been charged with committing an illegal act, don’t I still deserve the best representation possible to ensure justice is served?
I firmly believe Yates was wrong in the second case – the memo to her staff.
Though he artfully hedged on the issue, Acting Attorney General Boente’s position is also correct.
What should Jeff Sessions, now confirmed as Attorney General, do now with regard to presidential executive orders? He has reportedly recently indicated he will defend the President’s travel ban order. However, during his confirmation hearings he voiced opposition to denying U. S. entry to Muslims on the grounds of religion.
I’m in no position to advise AG Sessions, but if I was I would suggest he tell Trump he will effectively defend any part of the order that is lawful, but make clear that he will have great difficulty defending anything in it that appears to be clearly unlawful. He should defend any ambiguities in favor of the President to the extent possible, of course, since he is our government’s attorney.
If Sessions and the President cannot come to an agreement, and assuming the President is unwilling to rescind and perhaps issue a modified order, the Attorney General should resign. He should certainly not air any disagreements with the President publicly, as Ms. Yates did. Regardless of her personal motive, she weakened her client’s (the government’s) case.
Like 42 other states, Louisiana elects its attorney general. Recent events lead me to believe it may be time to reconsider that. Our state attorney general has gone out of his way to take legal positions counter to those of our governor. Would he do so if the governor appointed him?
Again, how can our state’s attorney defend our state, but not its chief executive?
Jeff Landry’s motivation for constant bickering with the Gov. Edwards doesn’t really matter. What matters is whether he can effectively represent the state’s (and, to that extent, the people’s) best interests while doing so. Notwithstanding his laudable efforts in consumer protection and Medicaid fraud prosecutions, he does the state and its people a disservice by not providing legal representation to our governor and, even more so, by openly defying him.
For the good of our state, isn’t it time for Landry to tone it down?