In introducing Eric Holder as his nominee for attorney general, President-elect Obama said, “Let me be clear; the attorney general serves the American people.” This is an aspiration rather than a statement of fact or proposition of law. It will be a reality to the extent that President Obama permits it to be.
The attorney general is appointed by the president, with the advice and consent of the Senate. Like all officers of the executive branch, the attorney general serves at the pleasure of the president and can be removed for any reason or none at all. It is the president who has the constitutional power and duty, under Art. II, § 3, to “take care that the laws be faithfully executed.” In the exercise of that power, the president has the ultimate authority to determine what legal position the United States will take in its courts, and he has the ultimate control over the exercise of prosecutorial discretion. To be sure, he is guided by the professional advice of the attorney general, and he will delegate such decisions for the most part, but the decision is his. If he does not have confidence in the attorney general’s view of the law, he can remove and replace him. In every functional respect, the president is the client and the attorney general the lawyer for the executive branch.
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