The Independent Attorney General Amendment
Independence That Cannot Be Fired
The Attorney General is, today, an at-will member of the President's Cabinet appointed by the President, confirmed by a simple Senate majority, and removable by the President for any reason or none, exactly like the Secretary of Commerce or the Secretary of Labor. That structure made a certain sense when the office was understood as principally a policy adviser to the President on legal matters. It stopped making sense the moment the Department of Justice became, as it is today, the government's central law enforcement and prosecutorial authority. An authority that can be turned against the President's own political opponents, or shielded from turning against the President himself, by the same person who can be fired by the President for refusing to do either. Longstanding internal Justice Department norms already recognize half of this problem: informal guidelines have discouraged White House officials from directing the outcome of a specific investigation or prosecution for decades. What no norm has ever done is touch the one lever that would make that restriction enforceable in practice, the President's unrestricted power to fire the Attorney General who declines to comply. A wall that can be dismantled by firing the person standing at it is not a wall.
The closest thing to this problem already tried and tested at the federal level is the FBI Director's ten-year statutory term, created by Public Law 94-503 in 1976 as a direct response to J. Edgar Hoover's forty-eight years running the Bureau under eight Presidents. Congress capped the term at ten years, deliberately longer than two presidential terms, so that no single President could build or control the Bureau in his own image. It has mostly worked as a term limit. It did not work as an independence guarantee, because Congress never paired the term with removal protection. A Department of Justice Office of Legal Counsel opinion in 2011 confirmed what the statute's silence implied, that the FBI Director serves at the President's pleasure notwithstanding the ten-year term. James Comey's firing in May 2017, six years into a term meant to run until 2023, is the illustration: the term length meant nothing once removal was unrestricted. This Article closes that exact gap, not just for the Attorney General but for the Director one level below: the same ten-year term, paired with the same cause-only removal by Congress rather than the President, now applies to both offices, so the term actually means what it says.
The selection design gives the President meaningfully less control than the Appointments Clause alone would allow: the President nominates one of three candidates an independent Nominations Commission produces, and the Senate confirms by three-fifths. Forty-three states already elect their Attorney General independently of the Governor, on the view that a state's chief law enforcement officer answers to the public rather than to the head of the executive branch that officer's office may need to investigate. The federal government has no equivalent independent-selection tradition, because the Attorney General is a Presidential appointee under Article II, and this Article does not attempt to make the office elected. The Nominations Commission accomplishes a similar goal by a different route: no President can install a loyalist alone, because the field is set by an independent body and the Senate's supermajority threshold means only a broadly acceptable nominee can be confirmed at all. The same Commission, the same nomination process, and the same three-fifths confirmation threshold govern the Director of the Federal Bureau of Investigation, closing the identical loyalty-capture risk one level below the Attorney General. Because the Director now answers to the same removal standard as the Attorney General above them, the Attorney General also has standing to petition for the Director's removal for cause. A supervisory check that exists alongside, not instead of, Congress's own petition authority.
Objection 1: the Attorney General is a principal officer under the Appointments Clause, and an office the President cannot remove at all may not survive Supreme Court review under Myers v. United States and Seila Law v. CFPB.
This is a constitutional amendment, not a statute, so it is not subject to the separation-of-powers doctrine the Court applied to statutory removal restrictions in those cases. A new constitutional provision amends Article II's removal power directly, exactly as a new constitutional provision is competent to do. The doctrinal concern those cases express that an unaccountable, unremovable executive officer undermines the President's constitutional duty to see the laws faithfully executed is answered here differently than a statute could answer it: the Attorney General remains removable. Just not unilaterally by the President, and Congress's three-fifths threshold in Section 5 is a materially higher bar than the ordinary politics of an at-will firing, precisely because law enforcement independence from the officeholder under investigation is the entire point. The same analysis applies without modification to the Director of the Federal Bureau of Investigation, who is protected by this Article on identical terms.
Objection 2: a Congress controlled by the President's own party could simply decline to ever vote for removal, no matter the cause, insulating an Attorney General who abuses the office.
That is true of every congressional-supermajority removal mechanism, and it is the tradeoff inherent in taking removal away from a single person. The alternative, letting the President remove the Attorney General unilaterally, is the exact problem this Article exists to solve. Section 6's private right of action for Department employees who refuse an unlawful directive, and Section 1(c)'s definition of cause reaching the Attorney General's own compliance with a prohibited communication, give the removal mechanism something concrete to act on even when the underlying misconduct is the kind that is hard to prove through ordinary politics.
Objection 3: a ten-year term will routinely span parts of two or three different presidential terms, forcing Presidents to govern with a Justice Department they did not choose.
That is the design, not a side effect. It is the same logic Public Law 94-503 used for the FBI Director in 1976, and the same logic behind long, staggered terms for the Federal Reserve's Board of Governors: an institution meant to operate independently of short-term political pressure is built with a term length that outlasts the political cycle putting pressure on it. A new President inherits the sitting Attorney General exactly as a new President inherits the sitting Director of the Federal Bureau of Investigation. Both are now protected by the identical ten-year term and cause-only removal standard, for the identical reason.
Objection 4: forcibly removing the sitting Attorney General and FBI Director the moment this Article is ratified is itself the kind of politicized purge this Article is designed to prevent.
There is a real difference between removing an official over a specific decision a President dislikes, and a one-time, universally applicable structural reset written into the Constitution itself and ratified by the states through Article V, not ordered by any single President. Every official displaced by this Article’s ratification is displaced by the same rule, regardless of who currently holds the office or which administration appointed them. The Article does not target an individual, it retires an office. Grandfathering the incumbent, the approach this book uses for offices like the Supreme Court, works when the goal is prospective structural reform without disrupting a life-tenured judiciary; it does not fit here, because the entire premise of this Article is that the existing at-will appointment structure has already produced officials whose independence the public has no way to verify. A ten-year term and cause-only removal mean little if the first person to hold them was selected under the very system this Article exists to replace. The transition in Section 7 has an expedited Commission and nomination timeline. A Senate vote with an automatic deemed-confirmation fallback if the Senate stalls. And a hard one-hundred-twenty-day outside deadline is built to make that reset happen quickly and predictably, not slowly enough for the old system’s dynamics to reassert themselves, and not left to any single actor’s discretion.
One further structural consequence follows from everything above: the Attorney General no longer belongs in the Presidential line of succession, and Section 9 removes the office from it. The Presidential Succession Act places the Attorney General seventh in line today on the understanding, true of every other Cabinet officer in that line, that the office is a member of the sitting President’s own administration, and inherits the presidency, if it ever does, as an extension of that administration’s mandate. This Article breaks that premise on purpose: the Attorney General is now chosen by an independent Commission the President does not control, confirmed by a supermajority rather than a party-line vote, and seated for a ten-year term deliberately built to outlast the President who happens to be in office when a vacancy occurs. An officer selected specifically to be independent of, and at times adversarial to, the sitting President is the one official in the traditional line least equipped to extend that President’s democratic mandate in a true emergency. Removing the Attorney General from succession is not a demotion of the office; it is the natural consequence of the independence Sections 2 through 6 already establish.
Objection 5: removing the Attorney General, together with the Office of Humanity's effect on five Cabinet departments elsewhere in this book, narrows the pool of officials available to lead the country in a genuine continuity of government catastrophe, and that risk, however small, outweighs a largely symbolic concern. Continuity of government is a real value, and this Article does not treat it lightly.
It leaves the Vice President, the Speaker of the House, the President pro tempore of the Senate, and nine other Cabinet rank officers in the statutory line exactly as they stand today: the Secretaries of State, the Treasury, Defense, the Interior, Agriculture, Commerce, Transportation, Energy, and Homeland Security. What this Article removes is a single office, the Attorney General, deliberately redesigned to be the least representative of the sitting administration's political mandate of any officer in that line. A separate provision in Chapter 10, unrelated to this Amendment, removes five more, the Secretaries of Labor, Health and Human Services, Housing and Urban Development, Education, and Veterans Affairs, because their departments' functions transfer to the Office of Humanity, a coordinate branch this book places outside the President's Cabinet and outside the line of succession for the same reason the Chancellor is excluded. Together those two provisions bring the line from eighteen offices to twelve. A succession crisis severe enough to reach that twelfth office is already a crisis in which legitimacy and public confidence matter more than depth of bench, and installing a ten-year appointee selected by a commission, answerable to neither party, and possibly holding office in active tension with the administration that just fell, does more to deepen that legitimacy crisis than to resolve it. Nine other Senate-confirmed Cabinet secretaries, each still chosen through ordinary presidential appointment, remain available before that problem would ever arise.
PROPOSED CONSTITUTIONAL AMENDMENT
Article [___] — The Independent Attorney General Amendment
Section 1. Definitions.
As used in this Article:
(a) “Nominations Commission” means the body established by Section 4.
(b) “Covered Office” means the office of Attorney General of the United States or the office of Director of the Federal Bureau of Investigation, and “Covered Officer” means the individual holding a Covered Office.
(c) “Cause” for purposes of removal of a Covered Officer under Section 5, means: (i) conviction of a felony by a court of competent jurisdiction; (ii) a judicial finding of mental incapacity by the United States District Court for the District of Columbia, upon petition by the President or not less than one-fifth of the Members of either House; or (iii) a determination, by clear and convincing evidence before the United States Court of Appeals for the District of Columbia Circuit, that the Covered Officer has persistently failed to perform the core statutory or constitutional functions of the Covered Office, reflecting systemic dereliction rather than an isolated lapse, or has committed a knowing and material violation of Section 6 of this Article. Good-faith legal or policy disagreement with the President, Congress, or a court, and good-faith prioritization among lawful enforcement priorities, do not constitute cause.
Section 2. Establishment; Retained Authority.
The Attorney General of the United States continues to serve as head of the Department of Justice and chief legal officer of the United States, and the Director of the Federal Bureau of Investigation continues to serve as Director of the Federal Bureau of Investigation, under the general supervision of the Attorney General; each shall exercise all duties, functions, and authorities assigned by law to that office, except as expressly modified by this Article. Notwithstanding Article II, Sections 1 and 2, of this Constitution, each Covered Officer shall exercise the executive power of the Covered Officer's office independently in matters of investigation, prosecution, and non-prosecution, subject only to the limits and procedures established by this Article. Nothing in this Article limits the President's authority to appoint and remove subordinate officers and employees of the Department of Justice or the Federal Bureau of Investigation as otherwise provided by law, to allocate personnel and resources within the Executive Branch, or to supervise and direct the non-prosecutorial legal functions of the Department of Justice, including its civil litigation positions and the legal opinions of its Office of Legal Counsel, provided that the President does not thereby direct the initiation, scope, timing, targets, or disposition of any specific investigation, prosecution, or non-prosecution decision in violation of Section 6.
Section 3. Selection and Term.
(a) Notwithstanding Article II, Section 2, Clause 2 of this Constitution, each Covered Officer shall be appointed by the following procedure: the President shall nominate one candidate from a slate of not fewer than three candidates presented by the Nominations Commission established in Section 4 for the applicable Covered Office; the Senate shall confirm such nomination by a vote of not less than three-fifths of Senators duly chosen and sworn.
(b) If the Senate fails to act on a Presidential nomination within sixty days of its submission, the President may submit a second nomination from the same or a revised Commission slate. If the Senate fails to act on the second nomination within thirty days, the nomination shall be deemed confirmed. For purposes of this subsection, the Senate “fails to act” if no vote on confirmation occurs on the floor of the Senate, regardless of any action or inaction by a Senate committee; provided that no nomination may be deemed confirmed under this subsection unless the relevant Senate committee has either held at least one public hearing on the nomination or allowed sixty days to elapse since the nomination's referral to committee without holding such a hearing.
(c) Each Covered Officer shall serve a single non-renewable ten-year term.
(d) No person may serve in a Covered Office more than once.
(e) No Covered Officer shall have represented the President.
(f) The Attorney General shall be a citizen of the United States, shall have been admitted to the practice of law for not fewer than fifteen years, shall have substantial experience in federal or state law enforcement, prosecution, or the judiciary, and shall not have held partisan elected federal office within the two years preceding appointment.
(g) The Director of the Federal Bureau of Investigation shall be a citizen of the United States, shall have not fewer than fifteen years of experience in federal law enforcement, investigation, or a combination of such experience with legal practice or judicial service, and shall not have held partisan elected federal office within the two years preceding appointment.
Section 4. Nominations Commission.
(a) The Commission shall consist of nine members, appointed as follows: three appointed by the President, having substantial experience in federal law enforcement or federal prosecution; three appointed by the Chief Justice of the United States, from among retired Article III federal judges; and three appointed jointly by the Speaker of the House of Representatives, the Minority Leader of the House of Representatives, the Majority Leader of the Senate, and the Minority Leader of the Senate, no more than two of whom may be affiliated with the same political party, from among sitting or former elected or appointed state Attorneys General. The Commission shall serve as the Nominations Commission for both Covered Offices.
(b) Commission members shall serve staggered four-year terms and may be reappointed once, by the same appointing authority that made the member's initial appointment under subsection (a). No Commission member shall be a current or former officer of a national political party, a current elected federal official, or a registered federal lobbyist. Commission members shall serve without compensation beyond reasonable and documented expenses.
(c) Upon a vacancy in a Covered Office, the Commission shall present a slate of not fewer than three qualified candidates for that Covered Office to the President within ninety days. The President shall nominate one candidate from the slate within sixty days of receiving it. The President may, on one occasion, return the slate to the Commission with written objections; the Commission shall respond with a revised or supplemented slate within thirty days.
(d) A Commission member may be removed prior to the expiration of the member's term only upon conviction of a felony, adjudicated incapacity, or a determination by the United States District Court for the District of Columbia that the member no longer satisfies the qualifications required by subsection (a) for that member's category of appointment. Any such removal shall be effected only by the appointing authority specified in subsection (a) for that member, and no President, Chief Justice, or member of congressional leadership may remove a Commission member appointed by a different appointing authority under subsection (a).
Section 5. Removal.
Notwithstanding Article II, Section 1, and any other provision of this Constitution, the President shall have no authority to remove a Covered Officer. A Covered Officer may be removed only upon a three-fifths vote of both Houses of Congress, sitting separately, upon a finding of cause as defined in Section 1(c), following the applicable determination described therein, upon petition by: (a) not less than one-third of the Members of either House of Congress; (b) the President, provided that the President is not, at such time, personally the subject or target of a pending investigation or prosecution by the Department of Justice; or (c) with respect to the Director of the Federal Bureau of Investigation only, the Attorney General. The vote of each House on removal shall be recorded and published. No removal may occur except upon a ground set forth in Section 1(c), and any purported removal on any other ground shall be void. No vote to remove a Covered Officer on the ground described in Section 1(c)(iii) may occur unless and until the determination required by that subsection has been made; a vote to remove taken on that ground before such a determination has been made is void and without legal effect.
Section 6. The Prosecutorial Independence Wall.
(a) Neither the President, nor any officer or employee of the Executive Office of the President, shall communicate with the Attorney General, the Director of the Federal Bureau of Investigation, or any officer or employee of the Department of Justice regarding the initiation, scope, timing, targets, or disposition of any specific investigation, prosecution, or non-prosecution decision, except through a written request for information transmitted through the Attorney General personally, a copy of which shall be disclosed to the Judiciary Committees of the House and Senate within thirty days as Congress shall by law provide.
(b) The President retains authority to establish, by public written directive, general law enforcement priorities and policy for the Department of Justice, applicable prospectively and without reference to any specific person, investigation, or case. A directive under this subsection may not be applied to a pending investigation, prosecution, or non-prosecution decision that commenced before the directive's issuance, and may not define a class of cases by reference to a particular person, a group of named or readily identifiable persons, or a political party or affiliation.
(c) No officer or employee of the Department of Justice may be removed, reassigned, demoted, or subjected to any adverse personnel action for declining to comply with a communication that violates subsection (a). Any employee subjected to such action has a private right of action for reinstatement and damages in the United States District Court for the District of Columbia. Sovereign immunity does not bar an action under this subsection, and such an action may be brought directly under this Article without further authorization or implementing legislation by Congress.
(d) A Covered Officer's knowing compliance with a communication prohibited by subsection (a) constitutes cause for removal under Section 5.
(e) The Attorney General shall designate a career, non-political Department of Justice employee as compliance officer, responsible for logging the disclosures required by subsection (a) and certifying to the Judiciary Committees of the House and Senate, within the same thirty-day period, that all disclosures required by subsection (a) have been made. A knowing failure to make a disclosure required by subsection (a), or to certify as required by this subsection, is itself a violation of this Section for purposes of Section 1(c)(iii).
Section 7. Transition.
(a) Removal of Incumbents. Upon the ratification of this Article, the individual then serving as Attorney General and the individual then serving as Director of the Federal Bureau of Investigation cease to hold their Covered Offices, effective immediately. This subsection is self-executing and requires no further action by Congress, the President, or any court.
(b) Acting Service. Upon a vacancy created by subsection (a), the most senior Senate-confirmed official within the Department of Justice, or within the Federal Bureau of Investigation, as applicable, who is not disqualified from acting service by law, shall serve as Acting Attorney General or Acting Director, respectively, until a successor is confirmed under this Section. An officer serving in an acting capacity under this subsection has no authority to make any appointment, removal, or policy decision beyond what is necessary to maintain ordinary operations pending confirmation of a successor. All investigations, prosecutions, and civil proceedings pending in the Department of Justice or the Federal Bureau of Investigation on the date of ratification continue without interruption, and all delegations of authority in effect on that date remain in force, until and unless altered by the Covered Officer confirmed under this Section or, in the interim, by the Acting Attorney General or Acting Director acting within the scope of authority described in this subsection.
(c) Expedited Initial Selection. Notwithstanding the timelines established in Section 3(b) and Section 4(c), the initial selection of the Attorney General and the Director of the Federal Bureau of Investigation under this Article shall proceed as follows: (i) the Nominations Commission established by Section 4 shall be constituted, and shall present an initial slate of not fewer than three candidates for each Covered Office to the President, within thirty days of ratification; (ii) the President shall nominate one candidate from each slate within fifteen days of receiving it; (iii) the Senate shall vote on each nomination within forty-five days of its submission, on the same “fails to act” basis provided in Section 3(b) except that the sixty-day committee-hearing allowance in that subsection is shortened to twenty days for purposes of this subsection, and if the Senate fails to act within the forty-five-day period, the nomination shall be deemed confirmed.
(d) Term. Each individual confirmed, or deemed confirmed, under this Section shall be sworn into the applicable Covered Office not later than one hundred twenty days after the date of ratification, and shall serve a full ten-year term under Section 3(c) beginning on the date of that swearing-in.
(e) Self-Execution. This Section is self-executing. If a deadline established by this Section is not met, the applicable Covered Office shall be filled, and the resulting term shall begin, as soon thereafter as practicable; a missed deadline does not invalidate an appointment or shorten the ten-year term established by subsection (d).
(f) Judicial Enforcement of Deadlines. If a deadline established by this Section has not been met ninety days after it was due, a person with standing may petition the United States District Court for the District of Columbia to order the President, the Senate, or the Nominations Commission, as applicable, to perform the duty required by this Section by a date certain. This subsection does not authorize a court to appoint a Covered Officer or to select among candidates on a Commission slate.
Section 8. Self-Execution.
This Article is self-executing. Congress may by law establish additional procedures consistent with this Article, may shorten but not lengthen any period of time prescribed by this Article, and may increase but not decrease the size of the Nominations Commission provided that the proportional composition required by Section 4(a) is maintained, but Congress may not otherwise diminish, condition, or suspend any protection, prohibition, or authority expressly established by this Article.
Section 9. Presidential Succession.
Notwithstanding Article II, Section 1, Clause 6, of this Constitution and the Twenty-Fifth Amendment, neither the Attorney General nor the Director of the Federal Bureau of Investigation shall be placed in, and no Act of Congress providing for the order of succession to the powers and duties of the office of President may place either officer in, any line of succession to the Presidency. This Section does not affect the eligibility of any other officer for placement in such a line of succession.
