Over in the “stupid republican idea” thread, somebody suggested that Maricopa (AZ) County Sheriff Joe Arpaio would be a candidate for Attorney General in a Bachmann administration.
I don’t know if there is any such speculation- all I found was a post on what seems to be a white supremacist message board- but it raises the interesting question of whether the USAG needs to be a qualified attorney.
I already know that the office was created by the Judiciary Act of 1789. The only qualification I found in the legislation was that the AG be “a meet* person learned in the law”.
Arpaio surely qualifies under a liberal reading- he’s been in law enforcement for 30+ years. Also, the idea of a unified bar didn’t exist until the 20th century; courts decided themselves who was qualified to practice, so Congress surely did not consider a mandatory qualification system for lawyers when it enacted the statute.
On the other hand, unlicensed practice of law is illegal in all 50 states, and the attorney general is undoubtedly engaged in the practice of law.
Thoughts? Please keep political shots at Arpaio and/or Bachmann out of it.
Does the Attorney General actually practice law? It seems like an administrative or managerial role more than one that requires him or her to appear in court.
I doubt any AG has actually argued a matter in court in the last 50 years, but advocating for clients (in this case, the federal government) is only one of an attorney’s roles. Arguably the more important function is counseling - providing legal advise. The USAG definitely does that.
The president has the White House Counsel to provide advice, and the Solicitor General to argue before the Supreme Court. The AG supervises a whole bunch of agencies, including ATF, FBI and the Marshalls Service. Practically speaking, I can’t imagine that any non-attorney would get Senate confirmation but I doubt that the AG practices law any more than the Surgeon General practices medicine; both jobs are more about running things.
The Solicitor General is an adjunct to the Attorney General. I agree the job is mostly managerial, but even in that regard it’s still an attorney function; non-attorneys can’t supervise attorneys who are practicing law, at least as far as the bar is concerned.
Marshalls Service is where you complain when your designer clothes for less don’t fit. You mean the Marshals Service.
And, uh, that should say “advice” at the end of post #3. :smack:
OK, that bit I did not know. So does that not answer the question? Since you have to be an attorney to supervise attorneys, and that’s a big part of the AG’s job, he or she must be an attorney.
You have to be an attorney to supervise them in the sense of practicing law. You don’t have to be an attorney to supervise them in the sense of assigning them tasks and stuff - corporate counsel report to non-attorney CEOs and vice presidents and so on.
I’m not sure that a federal prosecutor has to be licensed to practice law in any particular state in order to work in federal courts. they just have to be admitted to the bar of the courts they’re practicing in.
And I don’t think that the attorney general on a day to day basis functions as a practicing lawyer in the state sense of the word.
On the other hand, I doubt very much that someone not a licensed lawyer would get Senate approval these days.
I don’t think that experience as a law enforcement official would qualify as being “learned in the law,” so I don’t think that Arpaio would qualify. But I would think that, say, a law professor would qualify, even if that law professor happened not to be admitted to the bar.
The Attorney General invariably has been, but is not legally required to be, a lawyer. The Constitution is silent as to his or her qualifications, and 28 U.S.C. 503 provides simply, “The President shall appoint, by and with the advice and consent of the Senate, an Attorney General of the United States. The Attorney General is the head of the Department of Justice.” Sec. 505 still includes the language “learned in the law” as to the Solicitor General only. I agree that it’s almost inconceivable that a non-lawyer would ever be nominated to the post nowadays.
For many years the Attorney General served in the Cabinet but led no department; the Department of Justice wasn’t created until 1870.
Note that if the AG were not a lawyer, then legal-advice communications with him/her would not be attorney-client privileged. Other privileges might still apply.
If I recall correctly, the whole Paula Jones thing made attorney-client privilege a non-issue for the president. It’s executive privilege that is the operational issue.
I think what you mean by “supervise them in the sense of practicing law” is managing their work so as to direct them as to what counsel to give to clients or what arguments to make before the court.
E.g.:
MBA (non-attorney) Supervisor: “How is the Jones case going?”
Low-Level Attorney: “Pretty good. I made a writeup of some relevant case law and I’m going to introduce a Negligence theory in my arguments on Monday.”
MBA (non-attorney) Supervisor: “I never liked that type of argument because it looks like we are trying to blame others for our customer’s problems, when we really should be figuring out how to solve things together. Just call the other side and settle this like grownups.”
rather than:
MBA (non-attorney) Supervisor: “How is the Jones case going?”
Low-Level Attorney: “Pretty good. I made a writeup of some relevant case law and I’m going to introduce a Negligence theory in my arguments on Monday.”
MBA (non-attorney) Supervisor: “OK. We also got a request in from Robinson to evaluate his stock plan for securities law, conflict of interest, and ethics concerns. I need you to get back to him by next Wednesday. Can you do that?”
Low-Level Attorney: “Yeah. Send the file up my way.”
Also, I was wondering if the very fact of being appointed, validated, and sworn in as Attorney General makes one an attorney.
In my local jurisdiction, the County Sheriff (who, I believe, supervises the County Police and runs the County Jail) is an elected office - I can vote for Sheriff or even run for Sheriff myself if I felt like it. I’m not a certified law enforcement officer, rarely handle firearms, and probably couldn’t complete the driving obstacle course at Police Academy. But if I got elected, I would probably then become, legally, a valid LEO with the ability to, in theory, make arrests in the County, and have the ability to issue myself a gun and a Crown Victoria and act like a cop (not that that would get me a lot of respect, though).
Also, I think the POTUS has the right, in theory, to Commission any US Citizen (and possibly anyone) to any Commissioned Officer rank in the US Military, so, in theory, Obama could just up and make me a 4-Star General without me ever having been to West Point, let alone Boot Camp. It isn’t normally done that way as the military runs things according to it’s rules and the President’s signature on the commission is just a formality, but, if he did it, I doubt it would be held to be illegal or held that I wasn’t “really” a General.
Actually, it is customary for the US Attorney General to argue at least one case before the U.S. Supreme Court, though not all Attorneys General follow the custom. Attorney General Michael Mukasey argued a case before the Supreme Court in 2008.
