Reliance on AG Opinion

[Cornell Clayton]

Because most state AGs have independent constitutional standing and are
independently elected, their authority over other parts of the executive
and their position within the separation of powers is rather different than
that of the federal office.  There is some debate about the degree to which
an AG's opinion is binding on other executive branch agencies.  But what
seems clear to me is that they are not binding in any way on the president.
 Unlike some countries (say Israel for instance), the chief executive in
the U.S. is free to ignore the legal opinions of the AG, whose subordinate
that office is.

Whether an AG's opinion would be given much weight in either an impeachment
proceeding or in a criminal prosecution of the president (or ex-president)
is of course another matter.  I'll just note, that given the AG's
vulnerability to presidential appointment and removal powers, presidents
have nearly always obtained the legal opinions that they desired from their
AGs.  Only in rare instances, such as Watergate, have AGs not found legal
basis for presidential conduct.  Jackson I believe relied upon an AG's
opinion for his removal of Treasury Secretary Duane in the 1820s.  I don't
think Congress gave that argument much weight.

CW Clayton



At 09:34 PM 11/26/01 -0800, you wrote:
>        Lynne Henderson writes that California AG opinions are not "law" in
>that state. But this position is by no means universally accepted. Almost
>all state AGs would assert that their opinions bind the executive branch,
>at the very least. And to contravene an AG opinion would leave the errant
>state official without the advice of counsel defense, or the defense of
>qualified immunity in a civil rights case. This is a quite complex issue,
>and there is a lot of interesting state law on the subject. I agree
>generally with Bill Funk that the Attorney general's good faith opinion
>provides a powerful shield for offial action.  Dave Frohnmayer (a former
>state attorney general).
>
>Dave Frohnmayer
>
>President and Professor of Law
>University of Oregon
>Eugene, OR 97403-1226
>(541) 346-3036
>FAX:  (541) 346-3017
>pres at oregon.uoregon.edu
>