COMMENTARY: A close call that nearly cost us our democracy

By Berl Falbaum

We’ll start slowly with our conclusion that the Founding Fathers screwed up when they drafted the U.S. Constitution.

True, that’s a little presumptuous of me—actually more than a little—but when they drafted the appointments clause in the Constitution, giving the president the power to nominate the U.S attorney general, they made a big mistake.

That error never became clearer than in the fifth hearing of the January 6 Select Committee Thursday afternoon (June 23).

Three top Department of Justice (DOJ) officials testified when they refused to do the bidding of Donald Trump by agreeing to label the 2020 election corrupt, the president
looked for and found an acolyte: Jeffrey Clark, an assistant attorney general, an environmental attorney who headed the DOJ’s civil division.

Clark was prepared to promote the Big Lie that the election was infected with fraud in exchange for being appointed attorney general by Trump.

And thereby hangs the tale.

Clark was ready to help overturn the election for career advancement and the president was willing—nay, anxious—to reward a loyalist.

The scenario is similar to one involving former Attorney General William Barr.  Barr auditioned for the position by writing a paper on the duties of an attorney general. The paper, sent to the White House, coincided with Trump’s views.  

What happened?  He got the job and then made several questionable decisions, decisions that favored Trump, on the Mueller Report which investigated Russian collusion in the 2016 election.

We have another precedent. Think back 60 some years. In 1961, President John F. Kennedy appointed his brother, Bobby, attorney general.  Not only was this nepotism, but can you envision Bobby investigating his brother, if necessary?

The country should never be in such a position. The office of attorney general, the highest law enforcement position in the country, needs to be free from any pressure—presidential or congressional.

Decisions need to be made on the law and not subject to political influence from any sectors in the country.

Even candidates for the position who have high ethical standards may feel indebted to a president who appointed him/her to the post. It may be subtle but it will always be there. Even if the attorney general rules “objectively,” the public will always be suspicious that somehow the official owed a debt to the president and ruled accordingly.

It is time to edit the Constitution on this issue with all due respect to the Founders. We have constitutional experts who can develop an appointment procedure which avoids creating public distrust and suspicion and that insulates an attorney general from political pressure.

Perhaps a president appoints a special commission that would nominate a candidate and then sends its choice to Congress where—in secret—the candidate is approved or rejected. Secrecy would assure that the individual would not know who voted for or against the nomination.

How serious is this flaw? If Clark’s plan had succeeded, we might well have lost our democracy.

It was a close call, but courageous leadership in the Department of Justice represented by former Acting Attorney General Jeffrey Rosen, former Assistant Attorney General Richard Donohue, and Assistant Attorney General Steven Engel opposed the plan advocated by Clark and supported by Trump that would have promoted the Big Lie.

The three threatened to resign and testified that hundreds of other DOJ lawyers would resign as well if Trump went ahead with Clark’s proposal and if the president appointed Clark to the top position as he had planned.

The president backed down and it is not an exaggeration to conclude that the threat of mass resignations may have saved our democracy.

The last time I can remember when we were served with such political fortitude was in October 1973 when Attorney General Elliot Richardson and his deputy, William Ruckelshaus, resigned rather than obey President Nixon’s order to fire the Watergate Special Prosecutor Archibald Cox.

The good news in all of this?  If was heartening to discover that we had highly principled people, men and women, who stood firm. In these divisive and cynical times, their display on uncompromising integrity needs to be celebrated.

We were lucky—this time.  But what about the next?  Given what we have experienced, can we afford the risk?
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Berl Falbaum is a veteran political journalist and author whose 12th book, “Code Red! Code Red! How Destruction of the Environment Poses Lethal Threats to Life on Earth,” was published this month.