Opinion: Nessel strays from her constitutional purpose

Dennis Lennox

It is time to reform the office of attorney general to detach it from the politics of the day.

Recent actions by Democratic incumbent Dana Nessel, an unabashed far-left activist whose early priorities have included launching a special unit to surveil the activities of political and ideological opponents under the guise of so-called hate crimes, have demonstrated just how far the office has strayed from being the lawyer for the governor and, by extension, the state government.

Attorney General Dana Nessel.

The longest-serving Michigan attorney general, Frank J. Kelley, is partly to blame.

Kelley expanded the role over his 37 years in office from that of a largely low-profile occupant by styling the office, which unlike auditor general or state school superintendent, survived the reforms of the present 1963 constitution to remain elected statewide, as the people’s attorney.

Since then, both Republican and Democrat successors to Kelley have used the office to carry out partisan and ideological agendas. Nessel’s Republican predecessors, Bill Schuette and Mike Cox, politicized the office to the point where then-Govs. Rick Snyder and Jennifer Granholm could hardly trust them to provide disinterested counsel.

Of course, it wasn’t always this way.

Michigan’s 1835 constitution — the first in the statehood-era — is held up by most experts as the best of the four constitutions that have governed and prescribed the basic structure of government. It maintained the traditional role of the attorney general as the chief government attorney. This understanding was inherited from the English tradition, which remains the convention across the English-speaking countries. The very name of the office is indicative of its role to represent the government’s general interests in courts of law.

It wasn’t until 1850, when the then-fashionable ideals of Jacksonian democracy took hold, that Michigan started to directly elect the attorney general and a whole host of other officeholders. This legacy of electing offices, no matter how great or low, remains with us today.

The attorney general is not a general, though many people incorrectly address her as “Gen. Nessel.” The office has neither the rank nor style of a general. Rather, the general in attorney general refers to the office’s general jurisdiction over the legal interests of the government of the day. As a matter of protocol, etiquette and courtesy, it is “Madam [Mr.] Attorney General” — the older “Madam [Mr.] Attorney” form of address having fallen out of use on these shores — with the honorific of “The Honorable” used in formal context.

The concept of the attorney general as a prosecuting attorney-in-chief or even chief magistrate is unsupported by a reading of the constitution. In fact, a plain reading of the text finds no prescribed duties, authorities or responsibilities beyond the mere existence of the office.

Nessel’s refusal to fulfill her oath of office and enforce or defend the laws of Michigan, as duly passed by both houses of the Legislature and duly enacted by the governor, give the state Senate and House sufficient grounds to remove her statutory authority to appoint the solicitor general — the apolitical functionary charged with defending state law in the courts. This would not be without precedent, as the auditor general has been selected by the Legislature since adoption of the 1963 constitution.

Beyond this, the Legislature should also consider the unprescribed constitutional duties, authorities and responsibilities of the attorney general to ensure the incumbent of the day does not allow undue political considerations to affect the important legal counsel the office provides to the rest of state government.

Dennis Lennox is a political commentator and public affairs consultant. Follow @dennislennox on Twitter.