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In part two of our interview with Bruce Fein, Bruce explains the historical role of the attorney general as well as how that role has changed over recent administrations. While the position was originally charged in George Washington’s cabinet with defending the Constitution, Bruce believes that recent attorney generals have come to behave more like representatives of the president than regulators of presidential authority. Bruce finishes by giving his opinion on the actions that the incoming attorney general must take in order to return the position to the role that the founders saw for it.

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What’s an attorney general to do?

VOICEOVER: The position of the attorney general has been one of consistent activity since September 11. In Part 2 of our interview with Bruce Fein, we examine the role of the attorney general and get Bruce’s take on what Obama’s pick, Eric Holder, should do when he moves into office in January.

BRUCE FEIN, AMERICAN FREEDOM AGENDA: The attorney general is not mentioned in the Constitution. It was part of the first cabinet of George Washington. Edmund Randolph was our first attorney general. Under the statute and the way in which the president has treated the attorney general, he is the chief law enforcement officer of the land, and his major role is to tell the president, “No, you can’t do these sorts of things. It would violate the Constitution.” He used to be the authoritative interpreter of that document. It has, however, fallen into some disrepute in recent years because presidents have become inclined to appoint as attorneys general former campaign managers who are highly politicized or people who are yes-men like Alberto Gonzales and, to some degree, Michael Mukasey, who view their role as authorizing the president to do whatever he wants, rather than a role of saying, “Mr. President, you can’t do that, and if you do, I resign.” I had the good fortune of serving one of my first attorneys general at the Department of Justice under Elliot Richardson. And when Mr. Nixon instructed Mr. Richardson to fire Archibald Cox, who was the special prosecutor investigating Watergate at the time, Mr. Richardson said, “Mr. President, I resign. I won’t do it.” And it was that kind of courage that accelerated the downfall of Mr. Nixon. That’s the kind of attorney general we need, and I would prefer to have someone in his image, rather than Eric Holder’s image, who’s more of a politician than a custodian of the Constitution of the United States. It’s unfortunate that those like—I don’t want to just pick on Eric Holder, but people who have that thinking view the president as like their client in private practice: you do whatever your client asks you to do, and try to enable him to do whatever he wants. But that’s not the role the Founding Fathers envisioned. They said, no, the first and only oath that an attorney general takes is to support and defend the Constitution of the United States. When I served at the Justice Department, that is the oath I took when I was serving in the department under Richard Nixon. Despite the fact that formally President Nixon was head of the government, I worked diligently to assist his impeachment and removal from office because what he had done was against the Constitution.

INTERVIEWER: Many have argued that prosecuting various members of the Bush executive would be an extremely important step for an incoming administration, particularly for Obama, to show that he means it when he says “change,” and secondly to defend the Constitution.

FEIN: It is the most important function of government to itself turn square corners; that is, when a government official commits a crime, it’s far more imperative that it be prosecuted vigorously than when a private citizen does so. And if Obama wants to be more than the French aphorism “the more things change, the more they stay the same,” he must summon a grand jury to determine whether Bush, Cheney, and their subordinates were implicated in two kinds of crimes: one, criminal violations of the Foreign Intelligence Surveillance Act by spying on Americans, intercepting their emails without judicial warrants as required by the act; and two, complicity in torture. We know that at least three detainees were waterboarded, and all the public evidence indicates that waterboarding was approved by the president and Cheney and Condi Rice and others at the highest national security level. And it is vital that those kinds of crimes that go to the heart of civilized law be prosecuted. The rule of law is too important to be sacrificed for political expediency. If Obama or Eric Holder did not investigate seriously crimes by Bush-Cheney, it would be the equivalent of Ford pardoning Nixon, but just by a different name. And that, I think, should stiffen their spine, because Ford’s pardon of Nixon did not resound kindly in the history books or in his political fate a couple of years later.

INTERVIEWER: What are some of the things that we should look for in the first days in office of the new attorney general?

FEIN: We want to see whether they will defend the outlandish claims of executive privilege that were asserted by Mr. Bush to prevent Karl Rove, Harriet Miers, Josh Bolton from responding to congressional subpoenas whatsoever, whether he will defend the president’s right of secrecy, to prevent the American people from knowing what their government is doing, so that they can give a legitimate, knowing consent to the government. We need to examine especially the attorney general’s statements on the legitimacy of war. [In] my judgment—I’ve written on this—the Iraqi war is flagrantly unconstitutional because Congress does not have the authority to delegate to the president the decision to initiate war; Congress has to make that decision for itself. And if the attorney general is silent on this matter of unconstitutional delegation in presidential wars, it means the attorney general is ratifying the Bush-Cheney theory of the imperial presidency.


Please note that TRNN transcripts are typed from a recording of the program; The Real News Network cannot guarantee their complete accuracy.

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Bruce Fein is the founder of the American Freedom Agenda. He served in the US Justice Department under President Reagan and has been an adjunct scholar with the American Enterprise Institute, a resident scholar at the Heritage Foundation, a lecturer at the Brookings Institute, and an adjunct professor at George Washington University. He was an advisor to Ron Paul. Bruce is also the author of the book "American Empire: Before the Fall."