The Role Of The Attorney General Throughout History

Transcript

NEAL CONAN, HOST:

This is TALK OF THE NATION. I'm Neal Conan, in Washington. The president throws footballs with Chris Christie on the Jersey Shore. Michele Bachmann throws in the towel in Minnesota. And Scott Gomez throws shade at Ed Markey in Massachusetts. It's Wednesday and time for a...

GABRIEL GOMEZ: Pond scum...

CONAN: Edition of the Political Junkie.

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PRESIDENT RONALD REAGAN: There you go again.

VICE PRESIDENT WALTER MONDALE: When I hear your new ideas, I'm reminded of that ad: Where's the beef?

SENATOR BARRY GOLDWATER: Extremism in the defense of liberty is no vice.

SENATOR LLOYD BENTSEN: Senator, you're no Jack Kennedy.

PRESIDENT RICHARD NIXON: You don't have Nixon to kick around anymore.

SARAH PALIN: Lipstick.

GOVERNOR RICK PERRY: Oops.

PRESIDENT GEORGE BUSH: But I'm the decider.

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CONAN: Every Wednesday, political junkie Ken Rudin joins us to review the week in politics. This week, Bonner and Bachmann bow out, a special election next week in Missouri, Senator and former presidential candidate John McCain crosses into rebel-held Syria. Former Senator and former presidential candidate Bob Dole says he doesn't recognize the GOP anymore.

In a few minutes, the political role of the attorney general as some from both (technical difficulties) later in the program a look ahead to next week's meeting on drought and conservation in the Colorado River Valley. But first, political junkie Ken Rudin joins us as usual here in Studio 42. And we begin as usual with a trivia question. Hey, Ken.

KEN RUDIN, BYLINE: Hi Neal. Well, you know, it's hard to imagine, but the memorable Senate tenure of Mo Cowen is going to be coming to an end next month.

CONAN: The Mo Cowen.

RUDIN: Absolutely. He - Mo Cowen, of course, is the guy who was appointed, a temporary appointee to the Senate after John Kerry left to become secretary of state. And he will disappear once there's a special election on June 25th. But anyway, while many of these Senate appointments don't last that long, there are some who have lasted a long time. So the trivia question is: In the past half-century, what senator who originally came to the Senate via appointment lasted the longest?

CONAN: So if you think you know the answer to this week's trivia question, the senator in the past half-century who originally came to the Senate via an appointment and stuck around the longest - obviously winning a couple of elections maybe after that - give us a call, 800-989-8255. Email us, talk@npr.org. And of course the winner gets that fabulous no-prize T-shirt in exchange for a promise to send us a digital image for our wall of shame. So Ken...

RUDIN: And a button.

CONAN: And a button, oh of course the no-prize button. But Ken, Representative Bachmann today gets the no-prize in Minnesota.

RUDIN: Yes, a complete surprise, actually, because basically she had been airing commercials for her 2014 re-election campaign. But she announced this morning, it was in a video, and it was released at 3:21 A.M., in which she says that look, I'm not going to run for a fifth term. It's not because I'm fearful of losing my re-election.

CONAN: That's 9 pm Hawaiian time.

RUDIN: That's true. You're going to be in Hawaii. But it's not because I was afraid of losing my re-election, which you remember in 2012 against Jim Graves she barely won by about 4,300 votes. And also she said she has nothing to do - it has nothing to do with federal investigations for campaign financing.

CONAN: As you suggested, Ken, she said she was very confident that she would win next time around.

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REPRESENTATIVE MICHELE BACHMANN: Be assured my decision was not in any way influenced by any concerns about my being re-elected to Congress. I've always in the past defeated candidates who are capable, qualified and well-funded. And I have every confidence that if I ran, I would again defeat the individual who I defeated last year.

CONAN: Do you think she was concerned about that band in the room?

RUDIN: Well, you know, it's interesting. To say that I'm not concerned about winning re-election and a federal investigation makes me think that she was nervous about it.

CONAN: Maybe just a little bit.

RUDIN: But look, this is a district that Mitt Romney won by 15 percentage points, and she only won by one point. This is probably good news for the Republican Party. I think they have a stronger chance of keeping that district with her gone, and it probably hurts Democrats who would love to run against her.

But remember, you know, what's interesting about Michele Bachmann, she won the Iowa straw poll in 2011, and months later she was gone. But she did take Tim Pawlenty out of the race.

CONAN: In the meantime, a less celebrated Republican is leaving the Congress as well, Jo Bonner in Alabama.

RUDIN: Yeah, Jo Bonner, basically he's leaving Congress. He's a six-term Republican from Mobile, Alabama. He's going to become the vice chancellor of government relations at the University of Alabama, which is a new position, and you don't hear many people leaving Congress for that position. But anyway, this is a big Republican district. Romney won it with 61 percent, solid Republican. He's going to leave Congress in mid-August.

CONAN: And there will be a special election next week Tuesday in Missouri.

RUDIN: This hasn't gotten much attention. This is the one that Jo Ann Emerson gave up a few months ago. I think it hasn't gotten much attention because it's such a solidly Republican district. Jason Smith is the Republican, Steve Hodges is the Democrat. Both are pro-life; both are pro-gun. Sarah Palin made a big deal saying that she's giving $5,000 to the Republican candidate, but there's not much suspense in that election, either, solid Republican district.

CONAN: In the meantime, we also have a special election for that Senate seat, as we mentioned, coming up in Massachusetts to replace John Kerry, now secretary of state, and a little mud-slinging going on there.

RUDIN: It is pretty dirty. The election is June 25, which as you well know is the day before the final political junkie segment.

CONAN: It is.

RUDIN: On TALK OF THE NATION. I don't want to get sentimental about that.

CONAN: Too maudlin about that, but moving right along.

RUDIN: But anyway, but the race has gotten dirty, it's kind of silly. They're not really fighting on big issues, although Markey said the other day that this will be a referendum on the Obama administration. I'm not sure why he said that, but...

CONAN: Obama carried that state rather handily as I recall.

RUDIN: Yes, he did, and we expect that Markey's going to win, as well. But most polls I've seen, it's still in single digits. Now Republicans are deciding - aren't sure whether to heavily finance Gomez at all, to see if he has staying power or not, but one thinks that a Democrat is going to keep this seat.

CONAN: In the meantime, just to the south of Massachusetts, in Rhode Island, the governor there, who had long left the party of Lincoln, has decided to now throw in with the Democrats.

RUDIN: Yes, speaking of the party of Lincoln, Lincoln Chafee we're talking about. He was...

CONAN: Wasn't that a good transition?

RUDIN: It's excellent, excellent, excellent. I thought you said linked in. But anyway, he lost the - he was Republican, and he lost the Senate seat in 2006, and he became an independent, elected governor in 2010, and now Politico is reporting today that he's most likely going to switch his registration and become a Democrat, which a lot of...

CONAN: Where he will face some pretty stiff competition in the primary. As an independent, he gets a free ride, at least to the general.

RUDIN: Yeah, I mean that was a surprising thing. The Democrats were out to get him, but maybe this was to perhaps throw back that threat and become one of them, although there are a lot of conservatives who always felt he was one of them anyway, and that's why they challenged him in the 2006 Republican primary.

CONAN: In the meantime, it was interesting this past weekend to see Bob Dole, the former vice presidential nominee, former presidential nominee, for longtime minority leader in the House of - in the Senate, appearing on Fox News Sunday to talk about the Republican Party as he knows it and says, well, he wouldn't have stood a chance of getting the nomination had he been in the party today.

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BOB DOLE: I doubt it, and I - Reagan wouldn't have made. Certainly Nixon couldn't have made it 'cause he had ideas.

CONAN: It's sad to hear Bob Dole sounding that old, but...

RUDIN: Yeah he's nearing 90 years old. But he's right, yes, it's true. Reagan and Nixon and certainly Bob Dole would not survive in the Republican Party of today. But we could also point out that during the Nixon and Reagan administrations, the Republicans didn't have control of the House of Representatives. It's a completely different Republican Party, certainly more conservative than it ever was, and for better or worse, it's changed the kind of people they would nominate.

CONAN: In the meantime, we have some people on the line who think they know the answer to this week's trivia question, and that is in the last half-century the senator who originally arrived in the Senate via appointment and stuck around the longest, 800-989-8255. Email us, talk@npr.org. And we'll start with - let's see if we can Tim on the line, Tim with us from Florence, Massachusetts.

TIM: Yes, I'm going to guess Margaret Chase Smith from Maine.

RUDIN: Margaret Chase Smith was elected in 1948, she was not appointed to the Senate, so she won in an election.

TIM: OK, thanks.

CONAN: Thanks very much. Let's see if we can go next to - this is Pelly(ph), Pelly with us from Carolina Beach in North Carolina.

POLLY: Hi, my guess is Arlen Specter.

RUDIN: Arlen Specter also was first elected in 1980, he was not appointed to the Senate, and of course elected as a Republican, defeated as a Democrat.

CONAN: Thanks very much.

POLLY: All right, thanks.

CONAN: Oh, it's Polly, excuse me. I couldn't read anything. Let's go next to - this is Tom, and Tom's on the line with us from Baton Rouge.

TOM: Yes, could it be Huey Long?

CONAN: The Kingfish.

RUDIN: Well, Huey Long, first of all, one, I don't believe he was ever elected - appointed to the Senate. And two, we're talking about the last 50 years.

TOM: He was (unintelligible).

RUDIN: Yeah, we're talking about the last 50 years, and he was of course assassinated in 1935.

TOM: I missed the 50 years.

CONAN: Missed the 50 years, that half-century thing.

RUDIN: And you remember his two brothers, of course, Dewey and Louie.

(LAUGHTER)

CONAN: Thanks very much. All right, speaking - this is Linda(ph), Linda with us from Charlotte.

LINDA: Hey, I think it's Ted Kennedy.

RUDIN: Ted Kennedy is not a bad guess. He's been around a long time. But he was elected when he first ran for the Senate. He was elected in 1962. He actually replaced an appointment, who was John F. Kennedy's roommate, but Teddy was elected in '62, not appointed.

LINDA: OK, thanks.

CONAN: Thanks very much. Let's see if we can go next to - this is Adam, Adam with us from Louisville.

ADAM: Yes, my guess is Senator Gillibrand from New York.

CONAN: Kirsten Gillibrand.

RUDIN: Well, Gillibrand was appointed and of course was elected in 2010 and again in 2012, but that's only three years. That's not the longest.

CONAN: Most recent, maybe.

RUDIN: But we're talking about the longest in the last 50 years, and not Kirsten Gillibrand.

CONAN: All right, thanks Adam. Let's see if we can go next to - this is Mike, and Mike's on the line with us from Anchorage.

MIKE: Yes, I believe it's Ted Stevens from Alaska.

RUDIN: That is the correct answer.

CONAN: Ding, ding, ding.

RUDIN: Ted Stevens was elected to fill a vacancy in 1968. He was elected in...

CONAN: He was appointed.

RUDIN: Was appointed in '68, elected in a special election in '70, again in '72. He stayed in the Senate for 40 years and 10 days. Ted Stevens is the correct answer.

CONAN: Well, Mike, stay on the line. Also we got a correct email in, another Alaskan, Pamela Brody from Homer, Alaska, got her email in at the same time. SO they will both be getting free political junkie T-shirts and that fabulous no-prize button. Mike, stay on the line, we'll collect your particulars, and of course, we'll extract a promise from you to send us a digital image of yourself wearing said same devices to be posted on our wall of shame.

MIKE: Absolutely.

CONAN: Congratulations.

RUDIN: And you know, Neal, there is no place like Nome. I haven't said that in a while.

CONAN: You haven't said that for a while, but there's a reason - we were hoping you hadn't said that for a while. In the meantime, interesting, this is that blend of foreign policy and politics. John McCain, of course the presidential candidate himself, went into Syria. This is part of his campaign to try to urge the administration to do more to support the rebels. The White House said today everything's on the table, including a no-fly zone.

RUDIN: Yeah, well, McCain went in Monday. Of course he's been one the leading critics of the Obama Syria policy. He says we should be arming the opposition to President Assad. But of course, you know, the - a lot of the people who are against Assad may be jihadists. So it's almost like a...

Some of them declare themselves to be members of al-Qaida.

I mean, absolutely. So the choice of backing Assad, who's backed by Russia, Syria - I mean Russia, Hezbollah...

CONAN: And Iran.

RUDIN: And Iran, and the opposition backed by al-Qaida and jihadist groups. It's a tough choice.

CONAN: What's that old Kissinger line about the outbreak of the Iran-Iraq War? It seems a pity they both can't lose. Political junkie Ken Rudin is with us here in Studio 42. When we come back, we'll take a closer look at the role of the attorney general, as calls for Eric Holder's resignation ring out. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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CONAN: This is TALK OF THE NATION. I'm Neal Conan. It's Wednesday, which means Political Junkie Ken Rudin is back here with us. And Ken, is there a ScuttleButton winner this week?

RUDIN: There absolutely is, Neal. It was a four-button puzzle. The first one said OTB, one term Beame, mayor of New York. A button says me and McGovern. One said Stand Up for Wallace, and the other one said Scotty Baesler for Congress, from Kentucky. So, of course, if you add them together, you have...

CONAN: Beam me up, Scotty.

RUDIN: Beam me up, Scotty, which of course was never said on the actual show. But Betsy Hilt(ph) of Nashville, Tennessee...

CONAN: Like play it again, Sam. Nobody ever said that.

RUDIN: No, and nobody ever said Betsy Hilt except for me.

CONAN: Except for you.

RUDIN: In Nashville, Tennessee. She is the winner.

CONAN: All right. Well, congratulations. She will of course get that no-prize button and a free Political Junkie T-shirt. And is there going to be a new ScuttleButton puzzle?

RUDIN: It's up already.

CONAN: And a new column?

RUDIN: Already up at 2:00 a.m. this morning.

CONAN: My goodness, at the same time, just before Michele Bachmann posted that video.

RUDIN: Exactly.

CONAN: Exactly.

In the meantime, if you want to see all that wonderful stuff, go to npr.org/junkie. In the meantime, Attorney General Eric Holder faces calls for his resignation again following testimony on the Hill about press leaks. Holder denied involvement in the possible prosecution of journalists, but Republican House members say those statements are at odds with reports he signed off on subpoenas for press phone records.

Some are now calling for, well, charges against the attorney general. Holder controversy is not novel. Attorneys general have faced criticism from politicians in other administrations, even though the DOJ is supposed to operate outside the political realm.

George Terwilliger was deputy attorney general in the Reagan administration and acting attorney general during parts of George H.W. Bush's administration. He served as counsel for former Attorney General Alberto Gonzales. He's currently a partner at Morgan Lewis and joins us here in Studio 42. Good to have you on the program.

GEORGE TERWILLIGER: Thanks for having me here.

CONAN: Also with us, David Yalof, a political science professor at the University of Connecticut. His latest book is "Prosecution Among Friends: Presidents, Attorneys General, and Executive Branch Wrongdoing." And he joins us by smartphone from his office in Stores, Connecticut. Good of you to join us today.

DAVID YALOF: Thanks for having me.

CONAN: And David, these controversies appear to follow a pattern. There is some allegation, and records are demanded, and then the Justice Department is somewhat reluctant.

YALOF: Well, they are reluctant. They don't know whether executive privilege or attorney-client privilege - there's a whole host of privileges that may apply. And of course a lot of this is the fact that the attorney general is on the one hand the president's - one of the president's chief legal advisors, and on the other hand he has to have this neutral role as potential head of investigations throughout the executive branch. So it's a very difficult circumstance he finds himself in even under the best of circumstances.

CONAN: And there's two aspects of that, and Ken, I'm going to ask you about the bald political aspect. Attorney general has incredible power over the administration. Presidents tend to appoint people who they trust to this position.

RUDIN: Well, the famous story, of course, is John F. Kennedy appointing his brother.

CONAN: Brother.

RUDIN: Can you imagine that happening today? But Robert Kennedy, attorney general. But Richard Nixon's law partner was John Mitchell. A lot of times - the history of presidents appointing close advisors as attorney general is exactly what David says. The risk is, when does the attorney general stop becoming a close friend and becoming the legal arm of the government?

CONAN: And George Terwilliger, that turns us to you. How seriously do those in the Justice Department take that stance of independence once they're in the Justice Department, as in your case deputy and later as attorney general?

TERWILLIGER: Well, it's taken, of course, very seriously, not just by the attorney general and the other political appointees in the department, by all the fine men and women who embody the department and its traditions day in and day out. Look, this - to me this is a very simple, practical issue that very much depends on how it is executed by a given individual.

The attorney general does, as you pointed out, have two roles. One of those roles is as a Cabinet officer and the chief legal officer of the executive branch of the government. And in that role he's very responsible and in fact politically accountable to the people.

The second role is as a presidential advisor, not just on legal matters as a formal matter but on political matters as well. The Justice Department is very often an important component of carrying out a president's political, affirmative agenda. That was certainly true in the case of Robert Kennedy carrying out the civil rights agenda of President Kennedy.

And it's been true in every administration. So you know, I think the measure of an attorney general is taken by how well they separate those two roles and keep those two roles distinct. You know, I'm not going to make a judgment, and I think it's premature to make a judgment about this particular attorney general and the controversy with the press.

But I do think you have to put it in perspective. The fact of the matter is that leaks of national security matters are very, very serious things. And I am very sympathetic to the attorney general when he talked about the one leak involving a Middle Eastern covert operation that was the subject of the AP - the subsequent AP investigation.

And those reporters are friends of mine, some of them. They're very good people doing their jobs. And of course reporters should get a pass in those circumstances. They should not be subject to prosecution. But that doesn't mean that their work is immune from examination in an investigation.

CONAN: But the other case, the Fox case, are you familiar with any example from your time where reporters were described as aiders, abetters?

TERWILLIGER: No, and I think while the full story, and thus the full judgment, on that matter needs to be held in abeyance pending more facts. Somebody made a mistake. There was - it was unnecessary to engage in that kind of a description in order to go forward with that investigation. And just doing so seems to me to have an unnecessary chilling effect on the work of the press.

CONAN: David Yalof, let us turn back to you. Everybody goes back to history and says this is the worst since. And, well, you can pick out your favorite example, but everybody seems to begin with Watergate.

YALOF: Well, you know, George is absolutely right that to some extent we don't know all the facts. We probably won't know all the facts. There's a level of trust that has to be provided here, that we have to assume, absent other kinds of evidence, that the attorney general and all the people under him or her are acting extremely reasonably.

But part of what goes on is when we actually choose an attorney general, the Senate in its confirmation process doesn't really spend a lot of time thinking about this new neutrality that is required. And even though, yes, the attorney general has always been the chief law enforcement officer, the growth of federal criminal law beginning in the middle of the 20th century has put a tremendous amount of responsibility on the part of attorneys general to enforce this huge corpus of law, which includes a lot of law that the executive branch officials, including Justice Department officials, have to answer to.

And so it is amazing. You know, just consider Eric Holder, for example. Not that he's not an extremely qualified individual, but he was the legal advisor to the Barack Obama campaign, and he actually served in a very close capacity during the campaign advising Barack Obama on his vice presidential nomination.

Now, that obviously puts him in line with other attorneys general (technical difficulties) John Mitchell's already been mentioned, and obviously Robert Kennedy ran John Kennedy's campaign. But when you put individuals like that in this position, it's hard to imagine that the kind of criticisms that Eric Holder is now facing aren't going to almost be inevitable.

TERWILLIGER: I have to disagree with that just a little bit, if I may.

CONAN: George Terwilliger, go ahead.

TERWILLIGER: Very briefly. The attorney general just needs to separate those two roles. The neutrality isn't universal across the board in the role and responsibility of the attorney general. It's in the administration of the law and particularly the criminal law. But that is not a bar to the attorney general being a confidant and political advisor to the president, and indeed that's part of the attorney general's role as well.

CONAN: Even in the case of scandal, when the attorney general is being asked to investigate the president and his underlings?

TERWILLIGER: Well, that's obviously why we have a provision, it's not in statute anymore, it's a regulation now, for the attorney general as a matter of discretion to appoint an independent prosecutor or an independent subordinate to perform the investigation.

CONAN: That used to be special counsel.

TERWILLIGER: Exactly. But you know, I think the threshold for the use of that statute needs to be very, very high. And look, at the end of the day, the accountability for how the Justice Department is administered is more political than it is legal, except in the context of a very specific case.

CONAN: And Ken, the reason that is out of the books now is, well, the Clinton administration, when the special counsel started to investigate Whitewater and went pretty far afield.

RUDIN: It did. It started off as that, right, that land investigation, that land deal with Jim McDougal and Jim Guy Tucker. Remember those people...

CONAN: Boy, Jim Guy - I hadn't thought about that...

RUDIN: From the Arkansas names, wound up being Kenneth Starr investigating Monica Lewinski. So you're absolutely right. But David, I wanted to ask you whether a president is better served by having somebody close to him, like Bush and Alberto Gonzales, like the two Kennedys, or somebody like Janet Reno, who was not close to Bill Clinton and probably caused the president as much heartache as anything else?

YALOF: It's a terrific question, Ken, and I think presidents think that they want somebody who they know, who they are close to and trust. And so they think in those terms. But actually, what history shows is that when presidents end up relying at least initially on people who are not part of, let's say, their inner circle, like President Bush who had John Ashcroft. U.S. Attorney General John Ashcroft was not part of the inner Bush circle. Most of the problems, at least most of the conflicts that involved questions about the neutrality of the attorney general serving in this position were in the second term when Alberto Gonzales was the attorney general.

And so I mean I think presidents think, Ken, that I want somebody I know who will be there with me, who, you know, but to some extent, Janet Reno was a gift to the Clinton administration. We think a lot about Whitewater, and I love hearing Jim "Guy" Tucker's name again. But a lot of people forget that Al Gore was considered - was investigated for possible improprieties in 1996 involving calls made during that presidential election. Janet Reno made a very controversial decision not to appoint an independent counsel.

And it was controversial, but I think it would have been even more controversial perhaps almost, you know, a headline that would have taken over Washington, D.C. if that decision had been made by somebody who was much closer and a confidant of Bill Clinton, which Janet Reno never was.

CONAN: George Terwilliger, you were deputy attorney general and then stepped up attorney general. What's the difference between those two jobs? What about being attorney general surprised you that you really you should have known?

TERWILLIGER: Oh, well, that's very easy. Everything that goes right in the Justice Department is the work of the attorney general. Everything that goes wrong is the work of the deputy.

(LAUGHTER)

TERWILLIGER: But seriously, I mean the attorney general really has a role as the chairman of the board, where the deputy attorney general is in charge of the day-to-day operations of this sprawling executive organization.

CONAN: So by the time you stepped into the job, you understood what it was all about.

TERWILLIGER: I hope so, but I guess others will have to judge that. But that comes - actually brings us back to the current - some of the current issues because Eric Holder has said that he recused himself as to the matter of the A.P. subpoenas because he in fact was questioned by the FBI as a potential subject, someone who had the information or some of the information.

CONAN: One of the relatively few.

TERWILLIGER: One of the few. And delegated that decision regarding that case and all the supervision of that case to the deputy attorney general, Jim Cole. So he has, you know, a plausible deniability, I guess, on that one.

RUDIN: But didn't he say the same thing about James Rosen of Fox News, saying that he had no involvement at all? And as it turned out, he did sign off on the investigation.

CONAN: (Unintelligible) Rosen, yeah.

TERWILLIGER: Well, you know, I'll say this. I don't know what the facts are there, and I don't know exactly what Eric did or did not say in front of the Judiciary Committee. I will say that from my own experience at the Justice Department, whether it'd be on paper or in electronic form, the flow of things that goes past a desk of an official at that level on a daily basis can be mindboggling. And while I would have thought that prior to the hearing...

CONAN: Well, this might have stuck out, yeah.

TERWILLIGER: Yeah. He would have gone back to look. It is very possible that, you know, it came through or somebody told him about it, and he didn't see it. So I don't want to be an apologist for him. That's a very important matter and requires a very detailed inquiry. But at the same time, I don't think we should rush to any judgments.

CONAN: George Terwilliger, now - was acting attorney general during the George H.W. Bush administration, deputy attorney general during the Ronald Reagan administration. Served as defense counsel for former Attorney General Alberto Gonzales. Also with us is David Yalof, professor of political science at the University of Connecticut. His book is "Prosecution Among Friends: Presidents, Attorneys General and Executive Branch Wrongdoing." And, of course, Political Junkie Ken Rudin is with us. You're listening to TALK OF THE NATION from NPR News.

And we mentioned your role as a defense attorney as well to Alberto Gonzales. This must have given you another perspective.

TERWILLIGER: Well, it did, and it actually was very interesting because if you recall, at the time that Attorney General Gonzales resigned and there was subsequent follow-up investigations by the Justice Department inspector general and others, one of the issues of controversy was the removal of a number of U.S. attorneys who were...

CONAN: Was it a political purge?

TERWILLIGER: Right. Who are appointed by the president. Well, having - I actually was a deputy attorney general in the Reagan administration. I was the U.S. attorney appointed...

CONAN: Oh, forgive me.

TERWILLIGER: ...by President Reagan. So having served as U.S. attorney and as, you know, later as a higher official in the Justice Department, I hope I brought some perspective to that work. And I really think as the Justice Department and an independent counsel eventually determined that was much ado about nothing because U.S. attorneys can in fact be fired for any reason or no reason as long as it's not a reason of, you know, racial animus or something of that sort, simply because they want to put somebody else in to do a better job.

And in a way, that really does reflect this dual role of the department that we've been discussing here because U.S. attorneys are political animals. I think Tom Clancy once described them as people who have senators for a friend and want to be a judge. And the fact of the matter is that those are political appointees. From time to time, there's been scholarly examination of whether we should continue that practice or not. I actually, my own personal belief is it's a good one because the most important accountability in terms of the executive branch of government is political, not legal.

We're not going - we don't - cases - individual cases are addressed and decided by judges and juries, but the overall work of the department has to be judged by the people and reflected in how they vote.

CONAN: And, David Yalof, there is from time to time the attorney general called upon to take the heat and fall on his or her sword.

YALOF: Yeah. I mean, I agree with a lot of what George said. I think the question is what type of politics. We've seen certain patterns where, of course, there is this dual role, and, of course, there is this conflict. But, you know, how much strain do you want to put on an attorney general to faithfully deal with this conflict?

I mean, one of the problems that happened with both Edwin Meese and Alberto Gonzales is that prior to being an attorney general in both instances, they were close, personal legal advisers to the president in each instance, in the first term. And then you put that person into this dual role, and in many instances, they're forced to make difficult decisions about individuals who they worked with closely, they - who might have been in the next office, if not the next building.

And so to some extent, the issue is not politics. Of course, there must be politics. And a lot of what George said is this kind of echoed extremely eloquently by Justice Antonin Scalia in his dissent in Morrison versus Olson. The importance of these political - these political checks. But where is the politics coming from? And is it this accountability to the public or is it a political accountability to the president? The other thing I just want to make sure we're all clear about is...

CONAN: Very, very quickly please.

YALOF: ...there is no independent counsel law anymore, at least not since 1999. And so for that reason, the attorney general is going to play a very significant role in moderating and supervising even special prosecutors.

CONAN: David Yalof of the University of Connecticut, thanks to you. And former Attorney General George Terwilliger, thanks very much to you. Of course, Political Junkie Ken Rudin will be back with us next Wednesday. And this segment is produced by Laura Lee. It's the TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright NPR.