Latest / We Can Do Better / The Fox is Guarding the Henhouse – And We Can Fix That
Transcript
- Fran Quigley: Hello and welcome to We Can Do Better, a podcast about ending poverty in our time. My name is Fran Quigley, I'm your host. I'm a law professor. I go with my students every week to eviction court, where we represent some of the millions of people in our country who are facing the loss of their homes, who skip filling prescriptions, and even go hungry, despite living in the richest nation in the world. We can do better. For this week's episode, we're doing something a little different. I'm gonna put on my law professor hat and I'm gonna talk briefly, more briefly than in most of our episodes, about a rule of law problem that is impacting all of us, and and it has for some time, and it does this damage to us at the very top level of our government. It's about the fox guarding the hen house at the highest levels of government, really the president of the United States. And how we can do better. So what we have now in the United States in August of 2026 is a new U.S. Attorney General. His name is Todd Blanch. Todd Blanch was appointed by President Trump after his predecessor, US Attorney General Pam Bondi, was not successful enough, at least in Trump's eyes, at prosecuting his personal enemies. Todd Blanche's background is he used to be Trump's personal defense lawyer. And let's face it, he is still Donald Trump's personal lawyer, even though now as taxpayers we are paying his salary. If there's any question about that status, Blanche put it to rest last week. He was asked on NBC's Meet the Press this quote, can you pledge that the Justice Department We'll always act independently of the White House. His reply was this No, I'm not going to pledge that. And once again, the Trump administration does us a favor. It does us the favor of unmasking the inherent corruption that previous presidents have been politely hiding. Because what Todd Blanch did with his naked admission, he reminded me about a law review article I researched and wrote way back in 2010. The title of the article was Torture, Impunity, and the Need for Independent Prosecutorial Oversight of the Executive Branch. Rolls right off the tongue, doesn't it? The Blaw Review article, after all. And it was published in the Cornell Journal of Law and Public Policy. Now, in case that publication is not already on your coffee table and you haven't read all 246 footnotes, here's the gist of the article. After September 11th, high-level members of the George W. Bush administration approved horrific acts of torture, of kidnapping in secret prisons. These acts were not just immoral acts. They weren't just counterproductive acts. They were illegal. In 2005, Human Rights Watch issued a report called Getting Away with Torture with a question mark on the end. Unfortunately, we can remove the the question mark 11 years later. What tw excuse me, 21 years later. And we'll put a link to this article this report in the show notes along with my article. And what Blanche said, Todd Blanche said. But the human rights watch report is presented substantial evidence showing that there was a need for criminal investigations of multiple officials in the Bush administration, including then Defense Secretary Donald Rumsfeld and then CIA Central Intelligence Agency Director George Tennett. But we never saw them. PERP walked into any arraignment. We didn't see Dick Cheney perp walked into any arraignment. And the reason is really clear. The Department of Justice, under the Bush administration, not only refused to investigate sanctioning torture and refused to prosecute the sanctioning of torture, the Department of Justice, again, under the Bush administration, appointed by the President George W. Bush, actively resisted any congressional or popular pushback. To what the executive branch was doing. Now, as a reminder, we don't have a monarchy in this country. We supposedly have a system that has checks and balances. But what we learned back then, after 9 11, and we're reminded now, that in truth, our system grants impunity for the president and the president's team. And the reason why is because they control the only person. Who can initiate federal prosecutions? The president appoints, and as we saw with Pam Bondi, can fire the attorney general. And the attorney general is the head of the Justice Department. The Fox is guarding the henhouse. We can do better than this. Specifically, we can independently elect our attorney general at the federal level. We know this because an independently elected prosecutor is already the dominant model in local communities. Ninety five percent of criminal prosecutions happen at the local level, and those cases are filed and prosecuted by independently elected prosecutors. Mayors don't control who might file criminal charges against them. And prosecutors who are independently elected do file criminal charges against mayors and city council members, et cetera, quite often. The same thing happens with state level attorneys general, who are usually elected and not elected, and they're not appointed by governors, usually. And when states have switched to elected attorneys general, they never go back to it. They never go back to an appointed position. They've never been reversed by a state that adopted electing its attorney generals, because voters like having these checks and balances. So at the federal level, it seems very possible that given our divided electorate, That we could be electing a president from one party and also an attorney general from a different party to keep an eye on that president. We have a lot of split ticket voters in the United States, and we do like checks and balances on our top leaders. So, how can we accomplish this? How can we have an elected attorney general? It's likely that we're going to need a constitutional amendment, as we'll talk about in a second, maybe not, but likely. Arguably Article 2, Section 3 of the United States Constitution's phrase that the president, quote, shall take care that the laws be faithfully executed, end quote, puts the president in charge of law enforcement. But I would say I don't think that's a fully settled question at all. The framers of the Constitution did not specifically address the question of whether the Attorney General would be appointed by the president. You can look through the Constitution and not find that language. And in fact, the framers were very concerned about putting checks on the power of any one branch of government. And there's historical evidence that the first Congress didn't see presidential control of federal prosecutions as something that's mandated by the Constitution. So there is an argument that we don't need to amend the Constitution in order to independently elect our federal attorney general. But that said, there are some other options explored in the article, including. Beefing up the option of having an independent council that is responsible to another branch of com of government, likely the Congress. And that's been tried in the past, but it's never, frankly, been strong enough. And we would have to beef that up quite a bit. But even if a constitutional amendment is necessary, what President Trump is doing and what his flunkies like Todd Blanche are doing. They show us that if we do have to amend our Constitution, it's worth it. We need to root out the inherent corruption, whether it at the high where we're at the highest levels of our government, we have impunity while the fox pretends to guard the hen house. This is We Can Do Better. Thank you for listening, and we look forward to greeting you with another episode next week.