April 11, 1977

77-21 MEMORANDUM OPINION FOR THE

PRESIDENT

Proposals Regarding an Independent Attorney

General1

This is in response to your request that legislation be prepared that 

would provide that the Attorney General should be appointed for a 

definite term and should be removed from office only for cause of 

malfeasance. For the reasons discussed below, there is serious doubt as 

to the constitutionality of such legislation. However, within the limits 

set by the Constitution, there are steps which can be take further to 

remove the Attorney General and the Department of Justice from 

political influence.

The Constitution establishes the framework within which the proposed limitation on the removal of the Attorney General must be 

examined. The first sentence of Article II vests the executive power of 

the Government in the President and charges him with the general 

administrative responsibility for executing the laws of the United States. 

Article II, § 2, provides that, with the advice and consent of the Senate, 

the President shall select those persons who are to act for him in 

executing the laws. The closing statement of Article II, § 3, the last 

section of the Constitution dealing with the President’s powers and 

duties, emphasizes the President’s responsibility: “He shall take Care 

that the Laws be faithfully executed.” Thus, the President is given not 

only the power, but also the constitutional obligation to execute the 

laws.

In Myers v. United States, 272 U.S. 52 (1926), the Supreme Court 

held that the President had exclusive authority under the Constitution 

to remove a postmaster, an executive official, notwithstanding statutory 

attempts to restrict this power. The Court viewed the effort by Congress to restrict the discretionary right of the President to remove an 

officer he had appointed and for whose action he was responsible as 

inconsistent with basic mandates of the Constitution. Significantly, the

1 This memorandum was prepared by the Office o f Legal Counsel and approved by the 

A ttorney General

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Court reasoned that “to hold otherwise would make it impossible for 

the President, in case of political or other differences with the Senate 

or Congress, to take care that the laws be faithfully executed.” The 

constitutional underpinnings of this decision stand for the proposition 

that the President’s freedom to remove executive officials cannot be 

altered by legislation.

The Attorney General is the chief law enforcement officer of the 

United States. He acts for the President to ensure that the President’s 

constitutional responsibility to enforce the laws is fulfilled. To limit a 

President in his choice of the officer to carry out this function or to 

restrict the President’s power to remove him would impair the President’s ability to execute the laws.

Indeed, the President must be held accountable for the actions of the 

executive branch; to accomplish this he must be free to establish policy 

and define priorities. Because laws are not self-executing, their enforcement obviously cannot be separated from policy considerations. The 

Constitution contemplates that the Attorney General should be subject 

to policy direction from the President. As stated by the Supreme Court: 

“The Attorney General is . . . the hand of the President in taking care 

that the laws of the United States . . . be faithfully executed.” Ponzi v. 

Fessenden, 258 U.S. 254, 262 (1921). Removing the Attorney General 

from the President’s control would make him unaccountable to the 

President, who is constitutionally responsible for his actions.

It is our conclusion that the framers of the Constitution intended for 

the functioning of the executive branch to rest squarely on the integrity 

of the President. He alone is elected by, and thus represents, all the 

people. For this fundamental reason it is his policy decisions that are to 

control as he undertakes to execute the laws.2 Two of the Supreme 

Court’s many relevant statements in the Myers case are particularly in 

point:

The degree of guidance in the discharge of their duties that the 

President may exercise over executive officers varies with the 

character of their service as prescribed in the law under which 

they act. The highest and most important duties which his subordinates perform are those in which they act for him. In such cases 

they are exercising not their own but his discretion. . . . Each 

head of a department is and must be the President’s alter ego in the

2 T he follow ing was said by you at A ttorney General Griffin Bell’s swearing-in on 

January 26, 1977: “T o the maximum degree possible, the Attorney General should 

personify w hat the President o f the United States is—attitudes, philosophies, com m itm ents—because here is an extension o f the President’s attem pt to provide equality of 

opportunity and a sense of trust in the core o f our Am erican governmental institutions. . . This statement concisely summarizes the rationale underlying the constitutionally based prohibition on legislative restrictions of the President’s pow er to remove 

such an official.

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matters of that department where the President is required by law 

to exercise authority. 272 U.S. at 132-133. [Emphasis in original.] 

*******

Then there may be duties of a quasi-judicial character imposed on 

executive officers . . . , the discharge of which the President 

cannot in a particular case properly influence or control. But even 

in such a case he may consider the decision after its rendition as a 

reason for removing the officer, on the ground that the discretion 

regularly entrusted to that officer by statute has not been on the 

whole intelligently or wisely exercised. Otherwise he does not 

discharge his own constitutional duty of seeing that the laws be 

faithfully executed. 272 U.S. at 139.

Even though we have concluded that legislation establishing a definite term of office for the Attorney General and restricting the President’s power to remove him only for cause probably would be held 

unconstitutional, it might be argued that these proposals could be implemented by some method other than legislation, i.e., by Executive 

order. Because the restrictions would be imposed not by Congress but 

by the President himself, and because he legally could revoke or supersede the Executive order at will, it could be argued that the Executive 

order would simply constitute a voluntary waiver by the President of 

his constitutional power to remove the Attorney General. However, by 

restricting his power to remove the Attorney General, the President 

would necessarily be restricting his influence over that Cabinet officer. 

Indeed, that would be the declared purpose of the restriction. And by 

restricting his influence, he would be restricting his ability to fulfill his 

constitutional responsibility to ensure that the laws be faithfully executed. That constitutional responsibility for the execution of the laws 

cannot be waived. Therefore, it is our view that an Executive order, as 

well as legislation, restricting the President’s right to remove the A ttorney General would be constitutionally suspect.

We have not addressed specifically the question whether the A ttorney General could be placed in some sort of separate, non-Cabinet 

status with a fixed term and subject to removal only with consent of 

the Congress. This would amount to an attempt, in effect, to remove 

the Attorney General from the executive branch. The foregoing discussion establishes that the President must have control over the country’s 

chief law enforcement official because of the President’s constitutional 

duty faithfully to execute the Nation’s laws. Having reached this conclusion, it follows that there is no method, short of a constitutional 

amendment, to separate the Attorney General from Presidential control. One illustration of the constitutional problem raised by such a 

proposal is that if the Attorney General is removed from the executive 

branch he may become overly responsive to Congress, by virtue of the 

appropriation process, to cite only one example, and this would clearly

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affect the separation of powers among the three branches that is established by the Constitution. Analogous problems are easy to imagine.

There is a legal maxim that hard cases make bad law. We believe 

that implementing the specific proposal mentioned above would be 

permitting a hard case, Watergate and its aftermath, to produce bad 

law. It is the responsibility of the Chief Executive to make certain that 

the system, particularly including the Justice Department, is not subject 

to abuse for political purposes. That involves trust and integrity—two 

things no law can provide or guarantee. The relationship between the 

President and the Attorney General is governed by the Constitution. 

The fundamental aspects of this relationship, that is, the President’s 

power to appoint and remove Executive officers in his discretion, 

cannot be altered without impairing the President’s constitutional obligations to control the executive branch and faithfully execute the Nation’s laws.

G r if f in B. B e l l

Attorney General

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