Can the President of the United States Order the Attorney General to Drop a Case?

Anant Raut, Oct 31, 2011

Last month, 15 Democrats and 100 Republicans signed separate letters endorsing the proposed AT&T-T-Mobile merger and urging the Obama administration to drop the lawsuit brought by the Department of Justice’s Antitrust Division to block it. The fact that nearly all of the signatories turned out to have received thousands of dollars in campaign contributions from AT&T recently was no surprise; at its most benign, there is nothing untoward about the private sector supporting politicians who are naturally inclined towards their point of view.

What was surprising was that the letters were directed not to Attorney General Eric Holder, but to President Obama himself. Lost in the debate over the propriety of members of Congress weighing in on a merger was a different, far more interesting question: Can the   president of the United States order the attorney general to drop a lawsuit?

In short, yes. But that doesn’t make it a good idea.

The attorney general is a member of the executive branch, appointed by the president, and tasked with assisting the president in his/her responsibility to execute the laws of the United States. There is, in fact, a long tradition of presidents directing their attorney generals to drop lawsuits, stretching back to the earliest days of the Republic. But the president has sworn to “faithfully” execute the laws of the United States. Electing to discontinue lawsuits for political purposes is not only wrong; it cou


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