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(THE CONVERSATION) Five years after he was , Merrick Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, is President-elect Biden’s choice to as the next attorney general.

Previously, Biden has vowed that the Justice Department under his administration will be “” of him. He has stated that “ that department are going to be people who are going to have the independent capacity to decide who gets prosecuted and who doesn’t.”

Given Obama’s to the Supreme Court, and given Biden’s with Obama, it is probably no coincidence that Garland was chosen to serve as Biden’s attorney general. Despite claims that Garland will act independently, history suggests that this is unlikely to be the case.

The U.S. Constitution makes no mention of attorneys general, who today administer justice by overseeing , including the Federal Bureau of Investigation and the Federal Bureau of Prisons.

Congress created the position with the , which is the same act that organized the Supreme Court. This connection may indicate that the founders intended for the position to be a part of the judicial branch. Indeed, of the Judiciary Act empowered the Supreme Court to select the attorney general, as opposed to the president. This suggests that the founders did not intend for attorneys general to serve at the , as is typical of Cabinet-level positions in the executive branch.

Due to disagreements among the founders, the specifics of the attorney general selection process ended up being entirely omitted from the final version of the Judiciary Act. This provided an opening for the first president – George Washington – to fill that void by , then asking for Senate approval. This process has since .

Nevertheless, in his writings, Thomas Jefferson referred to this new position as the “.” Moreover, early attorneys general shared both offices and budgets with the judicial branch as opposed to the executive branch. Eventually, in 1870, and the attorney general was designated as its head, thereby codifying the position’s place within the executive branch.

Empowering the president to hire and fire the attorney general encourages presidents to pick attorneys general . It also motivates attorneys general to – at least if they wish to stay employed.

Trump, for instance, admitted to firing Attorney General in 2018, whom he had “loyally” appointed the year before, for failing to have the “.”

My own research has found that instances of in situations where the president and the attorney general are political allies. Just in the last year of Attorney General William Barr’s tenure, there have been many such examples.

In February 2020, recommended that Roger Stone – a Trump confidant who was of lying to Congress and witness-tampering – be sentenced to between seven and nine years in federal prison. After Trump tweeted that he “,” Barr overruled the prosecutors and .

Barr’s willingness to “” prompted a bipartisan group of more than 2,500 former Justice Department officials from both Republican and Democratic administrations to sign an open letter urging him to resign.

In May, Barr – a of Robert Mueller’s investigation of possible collusion between the Trump campaign and the Russian government – had the Justice Department against former National Security Advisor Michael Flynn, who had previously to lying to the FBI about his contacts with Russians. Once again, large numbers of former Justice Department officials .

In September, Barr moved to replace Trump’s private legal team with Justice Department lawyers to defend the president in a related to an alleged sexual assault from the 1990s. This move would have effectively meant that and would have been liable for any monetary damages in the event of the president’s defeat. A federal judge later to pursue this strategy arguing that “the allegations have no relationship to the official business of the United States.”

Barr is to serve as attorney general, and such appointments are not unique to .

Eric Holder – the first attorney general Obama appointed – publicly proclaimed he would be the president’s “.” Holder ended up becoming the first attorney general to be held in both criminal and civil for failing to turn over documents related to the after over said documents.

Other examples of Democratic cronyism include President John F. Kennedy, who appointed his , , as attorney general, despite . A few decades prior, President Harry S. Truman appointed his former to the role.

This trend arguably goes as far back as George Washington, who chose his former personal assistant, Edmund Jennings Randolph, as the nation’s . Critics of Barr’s deference to Trump regarding the Stone and Flynn investigations might be surprised to know that Washington himself directed his two attorneys general to start and stop prosecutions.

At his confirmation hearings, that he would act independently of Trump. Yet, as attorney general, Barr consistently proved willing to serve as Trump’s . Logically though, this makes sense: The position will never truly be independent as long the attorney general is – and serves at the pleasure of – the president.

Garland has a jurist and has from those across the political spectrum.

Reports of his nomination have been . This is important because Democrats (and independents who caucus with Democrats) are expected to control only 50 of the 100 Senate seats, which makes Garland’s path to confirmation very narrow.

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