Professionals, Politicos, and Crony Attorneys General:

A Historical Sketch of the U.S. Attorney General as a Case for Structural Independence

 

Jed Handelsman Shugerman

Fordham University School of Law

October 8, 2018

[Please do not cite without permission]

 

“When you get to the White House there are two jobs you must lock up – Attorney General and director of the Internal Revenue Service.”[1]

                                        --Joe Kennedy, Sr. to John F. Kennedy, perhaps apocryphally.

 

                The office of United States Attorney General has often been identified as “quasi-judicial” or having “quasi-judicial” aspects for much of American history.[2] Other parts of the Department of Justice have also been described as quasi-judicial, such as the Office of Legal Counsel and the Solicitor General. A glance at a list of past Attorneys General seems to confirm this judicial aspiration in practice.  Nine Attorneys General became Supreme Court Justices,[3] and others were notably judicious and professional in their tenure in the office.[4] Of course, there are some infamous examples of unprofessional cronyism, but there are famous counterexamples of those who stood up to the presidents they served in defense of legal principles. The “insider” friend, fixer, or brother of the president was presumably the exception.

                But a closer examination of the history of the office of Attorney General reveals a surprising pattern: The nineteenth century had relatively few cronyist appointments in an era known for patronage, but the twentieth century ushered in more partisan insiders, hacks, and fixers, just as the DOJ’s power had grown enormously. This shift was remarkably bipartisan, starting under President Woodrow Wilson, a Democrat, and then immediately after under President Warren G. Harding, a Republican. Perhaps this turn in the late 1910s started an era of partisan escalation as each party pushed the norms as they rotated into power. This paper suggests that these trends have contributed to making the DOJ partisan and allowing some presidents to imagine the attorney general’s office as the president’s personal lawyer and fixer. In just over half of the past century, the office of attorney general has been filled by a partisan insider.

                This research offered a number of patterns that I found especially surprising. First, nineteenth-century America is known for the rise of the patronage party system. Formal professionalization – especially legal professionalization – emerges somewhat late in the nineteenth century.[5] Nevertheless, there are relatively few crony or patronage attorneys general in an era of patronage without professionalization or recently-emerging professionalization. Second, the Progressive Era (roughly 1900 to 1920) is thought of as an era of reforming the partisan machine, of anti-patronage, of anti-corruption. And yet, the rise of the crony or partisan campaign insider AG begins in the Progressive Era under President Woodrow Wilson, and escalates from there, including in the Roosevelt administration, which was also perceived as being a shift to administrative expertise, the “brain trust,” or at least a team of established politicos. The Wilson and Franklin Roosevelt cronyism genuinely surprised me. The third surprise is just how bipartisan the cronyism of the Attorney General has been in the twentieth century. Democrats (every Democratic president from Wilson to Kennedy) accounted for more of the partisan-insiderism of the mid-twentieth century, though the party balance has shifted towards the Republicans decisively since the Nixon/Reagan era. (See colored chart at p. 3-5). The nepotism of the Kennedy administration with brother/protector Bobby and the corruption of the Nixon administration are most famous to modern observers, but the origins go further back to a time perceived to be more progressive and professional.

                In Part I, this paper presents an overview of that pattern, using the rough categories of “professional,” “politico,” and “insider” or crony.  [Feedback on these labels is welcome.]  I will focus more on the turning point during the Progressive Era: Wilson’s Attorney General A. Mitchell Palmer and Harding’s Attorney General Harry Daugherty. This focus will highlight how that rise of cronyism contributed to the abuses and corruption under those two attorneys general. Part II offers a historical critique of the unitary executive theory on prosecution, exemplified in Justice Scalia’s dissent in Morrison v. Olson, a position that would prevent many structural reforms. That position turns out to be incorrect in its historical assumptions. Part III offers some preliminary suggestions for structural reform of the Attorney General’s office and other parts of the DOJ, borrowing from the independent agency model, while remaining consistent with Article II’s Take Care and Vesting clauses. The breakdown of the norms of prosecutorial independence from partisanship is not a new phenomenon. It is a century in the making. The solutions borrow from some models that have grown elsewhere in the executive branch over that same century.

I.               Professionals, Politicos, and Patronage Insiders

                I went through the list of every attorney general who served at least one year, plus a few more with shorter but significant tenures, and excluding acting attorneys general. I checked their backgrounds to get a basic understand of how they rose to this office. Three categories emerged. First was the politico, a major elected official with established political clout, often as a sitting member of Congress. Sometimes the dynamic is “Team of Rivals,”[6] and sometimes it is party team player. But the salient feature is that this attorney general had his or her independent electoral base of power and an already established name. Second was the professional, a lawyer who had established himself or herself in private practice, government service and/or in the judiciary. Sometimes they are veterans from the DOJ or get promoted from within the DOJ. If they had held elected office, it had been brief or less prominent. They brought a reputation for skill to the office more than power. The third was the insider, a friend or direct supporter of the president who rises to power substantially because of his connection to the president or the president’s political faction. I sometimes use the word “crony” to describe these attorneys general, but that label is sometimes too pejorative. Some of these insider attorneys general turn out to be more professional and independent, while others are fixers who get embroiled in scandal.

                The first two models, the professional and the politico, dominate from the late eighteenth through the nineteenth century. The insider model pops up under Andrew Jackson and Ulysses Grant under Reconstruction, which should not shock students of Jackson or Grant. But the 1870s are surprising given that the Republicans created the Department of Justice in 1870 to promote professionalization and limit patronage.[7]  But the rest of the century returned to the professional/politico balance. Then the early twentieth century shifts back to insiders gradually, and then overtakes the other models in the mid-twentieth century. After a post-Watergate return to the professional model, the last few decades have been a mix of all three.

                This chart provides a quick overview, with an “X” to signify the most salient category for each attorney general, and an “*” to signify a secondary category where appropriate. This chart is followed by a short description of each of the insiders or cronies. This chart does not include acting Attorneys General or those with short tenures. For the twentieth century AGs, once the modern two-party system of Republicans and Democrats had taken on their more modern shape, I added red and blue to code Republican and Democrat, which helps illustrate the bipartisanship of the cronyism turn.

Attorney General

Professional

Politico

Insider/

Crony

Edmund Randolph (1789-94)

 

X

 

William Bradford (1794-95) (Fed)

X

 

 

Charles Lee (1795-1801) (Fed)

X

 

 

Levi Lincoln (1801-05) (Dem-Rep)

X

 

 

John Breckinridge (1805-06) (Dem-Rep)

 

X

 

Caesar Rodney (1807-11) (Dem-Rep)

 

X

 

William Pinkney (1811-14) (Dem-Rep)

 

X

 

Richard Rush (1814-17) (Fed)

X

X

 

William Wirt (1817-29) (Dem-Rep)

X

 

 

John Berrien (1829-31) (D)

X

 

 

Roger Taney (1831-33) (D)

 

*

X

Benjamin Butler (1833-38) (D)

 

 

X

Felix Grundy (1838-40) (D)

 

X

 

Henry Gilpin (1840-43) (D)

X

 

 

Hugh Legare (1841-43) (D)

X

 

 

John Nelson (1843-45) (W)

X

 

 

John Mason (1845-46) (D)

 

X

 

Nathan Clifford (1846-48) (D)

X

 

 

Reverdy Johnson (1849-50) (W)

X

X

 

John Crittenden[8] (1850-53) (W)

 

X

 

Caleb Cushing (1853-57) (D)

X

 

 

Jeremiah Black (1857-60) (D)

X

 

 

Edward Bates (1861-64) (R)

 

X

 

James Speed (1864-66) (R)

 

 

X

Henry Stanbery (1866-68) R

 *

 

 

William Evarts (1868-69) R

X

 

 

Ebenezar Hoar (1869-70) R

X

 

 

Amos Akerman (1870-71) R

X

 

 

George Williams (1871-75) R

 

X

X

Edwards Pierrepont (1875-76) R

X

 

X

Alfonso Taft (1876-77) R

X

X

 

Charles Devens (1877-81) R

X

 

 

Benjamin Brewster (1881-85) R

X

 

 

Augustus Garland (1885-89) D

 

X

 

William Miller (1889-93) R

 

 

X

Richard Olney (1893-95) D

X

 

 

Judson Harmon (1895-97) D

X

 

 

Joseph McKenna (1897-98) R

X

 

 

John Griggs (1898-1901) R

 

X

 

Philander Knox (1901-04) R

X

 

 

William Moody (1904-06) R

 

X

 

Charles Bonaparte (1906-09) R

 

X

 

George W. Wickersham (1909-13)  R

X

 

 

James C. McReynolds (1913-14) D

X

 

 

Thomas Gregory (1914-19) D

X

 

 

A. Mitchell Palmer (1919-21) D

 

 

X

Harry Daugherty (1921-24) R

 

 

X

Harlan F. Stone (1924-25) R

X

 

 

John G. Sargent (1925-29) R

 

 

X

William D. Mitchell (1929-33) R

X

 

 

Homer Cummings (1933-39) D

X

 

X

Frank Murphy (1939-40) D

 

X

 

Robert H. Jackson (1940-41) D

X

 

X

Francis Biddle (1941-45) D

X

 

 

Tom Clark (1945-49) D

X

 

X

Howard McGrath (1949-52) D

 

 

X

James McGranergy (1952) D

X

 

 

Herbert Brownell (1953-57) R

 

 

X

William Rogers (1957-61) R

X

 

 

Robert F. Kennedy (1961-64) D

 

 

X

Nicholas Katzenbach (1964-66) D

X

 

 

Ramsey Clark (1966-69) D

X

 

 

John Mitchell (1969-72) R

 

 

X

Richard Kleindienst (1972-73) R

 

 

X

Elliot Richardson (1973) R

*

X

 

William Saxbe (1974-75) R

 

X

 

Edward Levi (1975-77) R

X

 

 

Griffin Bell (1977-79) D

X

 

 

Benjamin Civiletti (1979-81) D

X

 

 

William French Smith (1981-85) R

X

 

X

Edwin Meese (1985-88) R

 

 

X

Dick Thornburgh (1988-91) R

 

X

 

William Barr (1991-93) R

X

 

 

Janet Reno (1993-2001) D

X

 

 

John Ashcroft (2001-05) R

 

X

 

Alberto Gonzeles (2005-07)  R

 

 

X

Michael Mukasey (2007-09) R

X

 

 

Eric Holder (2009-15) D

X

 

 

Loretta Lynch (2015-17) D

X

 

 

Jeff Sessions (2017-present) R

 

X

X

 

For just over half of the past 100 years, the Attorney General of the United States has fit more in the partisan insider mold than the professional or the established pol. As this trend increased through the twentieth century, note the bipartisanship, as both sides eroded norms of political independence. Presidents Wilson and Harding touched off a new round of cronyism from opposing parties, and then it continued alternating parties with Hoover, Franklin Roosevelt, Truman, Roosevelt, Eisenhower, John Kennedy, Nixon, Reagan, Bush, and then Trump.

                Let’s touch on each of these political operators to get a glimpse of their path to the office.                Was it a professional path, a path of political power, or an inside track?

                The first of the insiders was Roger Taney, under Andrew Jackson. He had been a minor political figure in Maryland (a state senator, then a county bank director) until he hitched himself to Jackson. In the fractured election of 1824, Taney became an “ardent Jacksonian.”[9] When the split electoral college vote led to a House vote, Taney lobbied Maryland congressmen to vote for Jackson.  This alliance helped him to be appointed Maryland attorney general, and then chairman of the Jackson Central Committee of Maryland and an organizer of his political convention in Baltimore as part of his successful 1828 campaign. Taney finished his term as state attorney general, then became Jackson’s acting Secretary of War and Attorney General from 1831 to 1833. Jackson appointed Taney in the wake of scandal, the Petticoat Affair (or Eaton Affair) of 1831. It was a salacious scandal over petty palace intrigue, leading to the resignation of all cabinet members except the Postmaster. In the wake of such upheaval, Jackson turned to a "Kitchen Cabinet" of insiders, including AG Taney. A fascinating bit of historical trivia: The Petticoat Affair is the origin of the term "Kitchen Cabinet": Jackson getting rid of the regular cabinet of the political establishment and turning to his own insiders.

Taney was a notably bad attorney general. In an advisory opinion for Jackson, Taney concluded the Constitution did not apply to free blacks - a preview of his Dred Scott opinion. Then he fought Jackson's Bank War, while the rest of the cabinet opposed it.  One of biographers concludes, “No one as politically astute as General Jackson could have been ignorant of one who had taken such a prominent part on his behalf.”[10] Cronyism paid off for Jackson. Taney then served as a close adviser and an advocate for Jackson as his Attorney General. After the Senate rejected Taney’s nomination for Treasury Secretary, Jackson fought for a year to make him Chief Justice, an office he held for 28 years, up through Dred Scott and the most of the Civil War.

                Benjamin Butler followed Taney immediately as Attorney General, and followed in his patronage footsteps. Butler had joined the Albany Regency, Martin Van Buren’s Democratic party movement-turned-machine in the 1810s. He advanced up through the party from Albany district attorney and member of state assembly. Jackson plucked him out of the state assembly to serve as Attorney General, surely serving the request of his Vice President Van Buren.[11] But the Jackson/Van Buren era of patronage was a short phase in terms of the attorney general’s office.

                The Civil War and Reconstruction brought back some of this patronage. James Speed’s brother Joshua was Lincoln’s closest friend from Illinois, and James had been a close friend of Lincoln’s since 1841, while building a modest law practice and teaching.[12] He won a seat in the Kentucky Senate in 1861, and then ascended to the Attorney General’s office. Speed had served as Ohio’s attorney general, then practiced law for thirteen years in Cincinnati.

                After Lincoln’s assassination, President Andrew Johnson’s administration was chaotic and marked by the most dramatic conflicts internally and with Congress over Reconstruction. Johnson’s attorney general, Henry Stanbery, was a strange choice, a relatively insignificant lawyer and bit player in Ohio politics. He had been attorney general of Ohio from 1846 to 1851, but then was seemingly out of politics for 15 years. Johnson plucked him out of obscurity, and he must have found something wildly appealing, because he first tried to appoint Henry Stanbery as chief justice of the Supreme Court. Looking at Stanbery’s thin record, this is not only stunning to the historian in hindsight, but it was also a surprise to the Republican Senate. The Senate rejected the nomination, mostly due to its opposition to Johnson and his hostility to Reconstruction. In response, Johnson nominated him for Attorney General. When U.S. Attorneys tried to enforce civil rights laws in Kentucky, Stanbery cut them off.[13] When Johnson was impeached, Stanbery served as his defense counsel. Johnson seemed to have gotten what he was looking for in Stanbery: fierce loyalty.

                The Grant era started off with a remarkable set of professionals: Evarts, Hoar, and Akerman. The New York Times reported that Akerman, a Georgia district attorney, was a “[u]niversal [s]urprise.”[14] Congress created the Department of Justice at this time. The traditional view had been that Congress created the DOJ to increase the federal government’s capacity to litigate a growing docket due to the Civil War and to enforce Reconstruction and civil rights. To the contrary, it was really an effort to shrink and professionalize the federal government.  The DOJ’s creation was linked with major professionalization efforts, such as the founding of modern bar associations, to make the practice of law more exclusive and more independent from partisan politics. The DOJ was created to promote the norms and structures of professional independence. But after the DOJ’s first Attorney General, Akerman, followed this aspiration, his successor was George Williams, more of a Grant crony. Williams was a senator who had been supportive of military Reconstruction, but by the 1870s, he had lost interest. President Grant may have appointed Williams not for his help in a civil rights campaign, but rather, for his help on his 1872 reelection campaign.[15] Then Williams cut back on civil rights enforcement.[16] Pierrepont followed Williams, and his role mixed professional and insider. Pierrepont had been the U.S. Attorney for the Southern District of New York, a significant position then as it is now. But what distinguished Pierrepont was his prominent and enthusiastic supporter of President Grant in the election campaign of 1872. He gave a major campaign speech for Grant at the Cooper Union in New York, the same location as one of Abraham Lincoln’s famous speeches, and then traveled around New York, attacking the Democrats’ Tammany Ring. Pierrepont, a former Democrat, had led the prosecution of Tammany Hall, which was the patronage machine controlling New York City.[17] It was apparently his campaigning for Grant and prosecution of Democratic leaders that put Pierrepont in line for Attorney General. Pierrepont continued Williams’s moratorium against prosecuting civil rights cases to protect ex-slaves, but he was tried to combat corruption in the administration and in the Whiskey Ring. A rumor spread that he had violated his professional duties by helping a defendant in the corruption cases.[18] Ultimately, these tensions, along with coalition politics, led to his departure.[19]

                For the next 40 years, there were no crony attorneys general, other than William Miller, who had been a close advisor to Benjamin Harrison. But then the 1910s were a turning point. President Woodrow Wilson’s attorney general A. Mitchell Palmer, famous for the Red Scare Palmer Raids, had served as a congressman for four years, not long enough to be a major congressional figure. More importantly, he also was a deft patronage manager and made connections while later serving on the Democratic National Committee. He was known as a party insider.

                Palmer did not support Wilson initially in 1912, but once he understood that Pennsylvania Democrats were going to back Wilson, Palmer shifted, too, and he shifted enthusiastically, a “committed champion” for Wilson, and was then “inducted into the inner circle of Wilson’s preconvention advisors.”[20] Palmer helped Wilson win the decisive Pennsylania primary and then became Wilson’s floor leader in the contested 1912 Democratic convention. He sacrificed some of his own political capital to help Wilson win the nomination. He wanted to attorney general more than anything else, but he lost out to a more “professional” figure, James C. McReynolds (who also happened to be a close friend of one of Wilson’s most trusted advisors and mentors, Col. Edward House. House was not a fan of Palmer). (McReynolds, despite his bigotry, was considered an elite lawyer more than an insider at the time, and I categorize him here accordingly, but I could reconsider upon deeper study of McReynolds). Palmer remained in Congress, then lost his race for the Senate in 1914. Now out of Congress, Palmer campaigned vigorously for Wilson’s re-election in 1916.

                In the second Wilson administration, Palmer served first as Custodian of the Office of Alien Property, a wartime role with massive power over property and many opportunities to hand out jobs and access to property. And he did use his power to hire many political supporters to lay a foundation for his own future political campaign. He had his eyes on running for President in 1920. He was never charged with corrupt seizure of property, but his hires were, and he was blamed for irresponsible supervision.[21] In 1919, he finally got the job he had wanted for seven years: He became attorney general. Wilson’s private secretary counseled that the attorney general’s office had "great power politically. We should not trust it to anyone who is not heart and soul with us."[22] It seems clear that Wilson chose Palmer due to assurances about partisan loyalty. The war was over, and the Red Scare of 1919 had begun. Palmer worked to foment the scare, feeding the public’s panic about Communism. He immediately abused the office’s power to start a policy of mass arrests and mass deportations. There were legitimate concerns: radicals had plotted major assassinations for May 1, 1919, which was then exposed and prevented. Palmer’s own house was bombed on June 2, 1919. Palmer blamed immigrants, rather than domestic sources. Palmer ordered raids on Russian immigrants, which turned out to produce relatively small amounts of evidence of radicalism and few deportations, but the newspapers loved the raids.[23] Palmer then increased his crackdowns in 1920, and warned of even bigger terror threats. But those warnings never led to any evidence, the Red Scare was settling down, and the public eventually grew tired of Palmer’s self-promoting fear-mongering. Newspapers turned against him, and the leading legal minds of time – Felix Frankfurter, Roscoe Pound, Zechariah Chafee, Ernst Freund, then followed by Harlan Fiske Stone and Charles Evans Hughes – condemned Palmer’s abuse of power. Nevertheless, he still announced his campaign for president in 1920, with significant support. He had a sizable number of delegates at the divided 1920 convention, and he stayed in through thirty-eight ballots, before dropping out. This ended his political career. Palmer’s tenure as Attorney General was marked by his abuse of power to feed his political ambition.

Palmer’s tenure illustrates one reason why the Attorney General office became so politically salient: It built tremendous power over immigration, deportation, and national security over the twentieth century. It is surely important to make sure that the president has sufficient command over those areas and that the attorney general is politically accountable.

                The path from party loyalty to Attorney General escalated in the next administration, and the start of a new norm: a president putting his campaign manager as head of the DOJ. Harry M. Daugherty and Warren G. Harding had been close friends 20 years, coming up through the Ohio Republican party and through the same faction of the party (the “Foraker faction” in the state legislature).[24] President William McKinley was from Ohio, and Daugherty benefited from his close proximity to such power. In 1896, Daugherty had been one of McKinley’s party insiders and convention managers.[25] When the Republican Party split between Taft and Teddy Roosevelt in 1912, Daugherty and Harding backed fellow Ohioan Taft and played major roles in his campaign. Then Harding won a seat in the U.S. Senate in 1914, but Daugherty lost his shot in 1916, so Daugherty hitched himself to Harding’s presidential ascendancy, serving as his campaign manager. Harding won and appointed Daugherty attorney general, one of Harding’s “Ohio Gang” insiders.[26] The Ohio Gang then engineered one of the most infamous corruption scandals in American history, the Teapot Dome scandal. Daugherty was never directly linked to the scandal, but he could not escape suspicions.[27] In fact, Daugherty used his power and his officials to retaliate against the congressmen investigating him.[28] It was the Prohibition Era, and two of his friends, whom he had hired for DOJ offices, used their powers to remove seized liquor and sell it back on the street, selling scarce government liquor permits, selling government jobs, engaging in financial fraud, and obstructing justice. Historians have suggested that Daugherty must have known.[29] Daugherty also cracked down on railroad strikes aggressively, and criticism grew that he had been too punitive. The House Judiciary Committee began impeachment hearings on fourteen grounds. But then Harding died suddenly in 1923, and Calvin Coolidge became president. Coolidge did not have any special connection to Daugherty, and meanwhile, the Teapot Dome scandal grew worse as the 1924 election approached. Coolidge had more than enough reason to force Daugherty’s resignation in 1924.

                After the consummate professional Harlan Fiske Stone cleaned up this mess as AG for one year, Calvin Coolidge appointed his friend from childhood, John Sargent.[30] Sargent was a solid insurance lawyer and had served in Vermont state government for two years under his cousin, the governor, and then served for four years as Vermont’s attorney general. He was not exactly a national name.

                Franklin Roosevelt and Harry Truman ushered in another round of insider attorneys general. Homer Cummings was a prominent lawyer, local leader in Connecticut, and then chair of the Democratic National Committee.[31] After sitting out politics for decade, he returned to shepherd Roosevelt to the Democratic nomination in 1932 as convention floor manager and strategist. When Roosevelt’s first choice for attorney general died right before inauguration, he turned to Cummings. Cummings served as a loyal manager and strategist for the New Deal, including his role as point person for Roosevelt’s court packing plan of 1937.[32] Robert Jackson was famously professional in hindsight, but he, too, emerged from partisan insider connections. When Roosevelt was governor, Jackson served on his state commissions.[33] He had been an early supporter of FDR, and served as chairman of Democratic Lawyers for Roosevelt.[34] Jackson was a key liaison during the campaign, became a close friend of Roosevelt’s, then rose up the ranks of the DOJ to attorney general.[35]  Tom Clark, in addition to being a DOJ veteran professional, similarly ascended to attorney general through his well-known close friendship with President Truman.[36] J. Howard McGrath was national party chair for Truman’s uphill 1948 race, and was nominated the following year. Eisenhower, Kennedy and Nixon did the same for their campaign managers, Herbert Brownell, Robert Kennedy, and John Mitchell, respectively.[37]

                Of course, Robert Kennedy and John Mitchell are especially famous cases of nepotism and cronyism, but they each reflect the downhill fixation with fixers in the twentieth century. A recent biography of Robert Kennedy offered a striking narrative of how he made his way to Attorney General. Larry Tye reports that Joe Sr. had been talking about Jack as president and Bobby as attorney general for three years before the election.[38] He wanted Bobby in the cabinet to protect Jack. However, Bobby was just 35, he had never actually tried a case. Tye and Michael Beschloss offer a seemingly-apocryphal  quotation from Joe Sr. to Jack: “When you get to the White House there are two jobs you must lock up – Attorney General and director of the Internal Revenue Service.”[39] It turns out that this quotation comes from a National Review article in 1988, attributed to House Speaker John McCormack, so take it with a grain of salt.[40]  Bobby Kennedy continues to receive tremendous credit for his professional work as attorney general, his commitment to civil rights, and to national security issues. But it is worth noting that the Kennedy familiy’s links to organized crime were never investigated in these years.

                Lyndon Johnson’s attorneys general were more the professional model, but Nixon’s were not. John Mitchell came out nowhere politically to befriend Nixon and then run his 1968 and 1972 presidential campaigns. In the first campaign, he allegedly subverted the Paris Peace Accords that had been progressing towards ending the Vietnam War.[41] The second turned into Watergate.

                 Richard Kleindienst replaced Mitchell after he departed to run the 1972 campaign. Kleindienst had been Deputy Attorney General during the federal government’s suit against International Telephone & Telegraph Corp, [ITT]. During Nixon’s first term, Nixon and his adviser and co-conspirator John Ehrlichman had told him to drop an anti-trust suit against ITT, one of his biggest campaign donors and from which Nixon wanted more money. In 1971, Kleindienst did Nixon's bidding, cutting a corrupt favorable deal for ITT. Later, Kleindienst lied to Congress about the ITT case. Though he was elevated to Attorney General, he resigned as the Watergate scandal escalated in 1973. In 1974, he pleaded guilty to a minor offense in connection with the case. [42] [1]

                Reagan’s first attorney general, William French Smith, was not as famously a partisan insider as his second, Edwin Meese, but he was still a buddy insider from Reagan’s early days in California politics. Smith has been a prominent lawyer in Los Angeles, atop the major firm Gibson Dunn & Crutcher. Reagan and Smith met before Reagan’s 1966 campaign for governor, and Smith became part of Reagan’s “kitchen cabinet,” his small group of close advisors. Reagan appointed Smith to the University of California Board of Regents in 1968, and Smith would go on to serve three terms as chairman, while also serving on the board of a number of major corporations in California and nationally. He was a delegates representing California in the Republican Conventions of 1968, 1972, and 1976, serving as vice chairman of the California delegation in 1972 and 1976. Reagan, uncoincidentally, challenged President Gerald Ford for the Republican nomination in 1976. When Reagan eventually won in 1980, he immediately brought Smith with him to Washington as his attorney general.

Reagan’s second Attorney General was Edwin Meese, his close friend and chief of staff during his governorship. Meese was also his 1980 presidential campaign’s chief of staff and transition head. As “Counselor to the President,” Meese was deeply involved with political strategy and outreach to the Evangelical community. His four years as Attorney General were tainted by Iran-Contra questions, the Bechdel scandal and the Wedtech scandal, which revealed ethical problems and led to his resignation in 1988.[43] Since Meese, the trend shifted back to more professionals and politicos, until George W. Bush appointed Alberto Gonzales to follow John Ashcroft. Gonzales had served as general counsel to Bush, and Bush elevated him to the Texas Supreme Court. After two years, he resigned from the court to join the Bush administration as White House Counsel in 2001. Bush appointed him Attorney General in 2005. He played the central role in the partisan firing of U.S. attorneys, leading to his resignation. Today, Jeff Sessions fits a more as the established politician along, but he became a campaign insider, as well. He was the first Senator to endorse Trump, and his direct involvement with the campaign embroiled him in Russia contacts leading to his recusal.

What about Clinton and Obama? There is no denying that Clinton’s administration had major cronyism and corruption problems, but not extending to his Attorney General appointments. His nominations of Zoe Baird and Judge Kimba Wood, followed by his successful appointment of the politically independent Janet Reno all fit solidly into the professional category. In fact, Reno’s political independence led rightly to the independent counsel investigations, which in turn led to Clinton’s impeachment. (For what it’s worth, I publicly supported Clinton’s impeachment and removal in fall 1998). Eric Holder and Loretta Lynch made some mistakes during their service, especially Lynch’s decision to meet with Bill Clinton on the tarmac and allegedly in her interactions with FBI director Jim Comey after she recused. But it would be unfair to categorize them as “cronies” when both were clearly from the professional model after years of solid service in the Department of Justice. Neither had a personal or political link to Obama in any way close to the many other examples I have noted.

                This overview of attorneys general getting ahead through connections is not meant to show that such backgrounds always lead to corruption. They don’t seem to. But it does show that norms of independence of the DOJ from the president – either because of political clout or professionalism - once existed, but have eroded significantly. Almost every president from FDR to Reagan appointed his campaign manager or national party chairman to be attorney general at some point, and this problem has gotten worse.

Considering how these norms are crashing down all around us, what can be done structurally to protect independence? Can Congress change those structures – altering appointment powers, removal powers, or otherwise – to restore independence more formally by statute?

II. Original Understandings, Alternative Designs, and Morrison v. Olson

                Independent agencies had their origins soon after the creation of the DOJ in 1870. Congress created the Interstate Commerce Commission in 1887, the first commission with staggered terms and protection from at-will removal. The ICC became a model for independent agencies, which grew in number during the Progressive Era and the New Deal.

                Could Congress apply some aspects of this model to the Office of the Attorney General and the Department of Justice? Before considering the details of those models, the first big picture question is whether alternatives are possible. Must the Department of Justice must fit the unitary executive theory, in terms of complete control by the president for appointing, directing, and removal? Or can there be an alternative model consistent with Article II of the Constitution?

                The Supreme Court’s decision in Morrison v. Olson,[44] upholding the constitutionality of the Office of Independent Counsel by a 7-1 vote, indicates that the answer is yes. But today many celebrate that one dissent, written by Justice Scalia, and hail it as one of the greatest dissents in American history. The majority allowed Congress to create a prosecutorial office as an inferior office, appointed and supervised by three Circuit Judges, and protected from presidential removal. Justice Scalia made a series of historical assertions about the unitary executive for all prosecution, rejecting such a design. However, Scalia’s dissent was fundamentally wrong about American history, which should be a fatal flaw on his own originalist terms.[45]

                Scalia’s core argument was, “Government investigation and prosecution of crimes is a quintessentially executive function.” He continued: “We should say here that the President’s constitutionally assigned duties include complete control over investigation and prosecution of violations of the law, and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States.”[46] (That’s Justice Scalia’s original emphasis on the word complete.)

                The Supreme Court has rejected the unitary model where administrative officers exercise a more mixed role of “quasi-judicial” or “quasi-legislative” authority. This rule permits many vital independent agencies, like the Fed, the Securities and Exchange Commission, and the Federal Trade Commission, to function with a significant degree of independence. But if prosecution has historically been exclusively an executive power, the proponents of the unitary executive contend that the president must have an unfettered power to appoint, direct, and remove those officers at will. Historians have demonstrated that this view simply was not true in the founding era. Scalia’s dissent in Morrison is simply inconsistent with his purportedly originalist method.

                First, for most of English and American history, most prosecution was not an executive function at all, because it was a private enterprise. In England, the vast majority of criminal prosecution was by private parties, as historians like John Langbein, Patrick Devlin, and many others have explained. The English did not have a public official specifically assigned as a prosecutor until it created the director of public prosecution in 1879. The American colonies created the office of public prosecutor before the English homeland, mostly because they borrowed from Dutch and French colonial influences. Nevertheless, the vast majority of American prosecutions were still private through the mid-nineteenth century, as Allen Steinberg and many other historians have demonstrated. The rough consensus is that the public prosecutor did not overtake private prosecution in America until after the Civil War, and yet private prosecution continued deep into the twentieth century. Even today, New Hampshire, New Jersey, Pennsylvania, Rhode Island, Virginia, and Texas allow private citizens to serve a role in criminal prosecutions.

                Second, Scalia hedged a bit by talking about “governmental” prosecutions. But even this fallback position is inaccurate. Congressional committees investigate crimes with subpoena power, and Congress has the power to enforce these powers with its own legislative contempt proceedings. Contempt of Congress is a criminal offense, and it historically has been prosecuted entirely within the legislature.[47]

                Third, historians have pointed out that the Judiciary Act of 1789 undercut Scalia further on his “governmental prosecution” claim. The statute in the first Congress allowed deputy marshals to be removed by federal judges. Even today, federal judges have the power to appoint interim U.S. attorneys.[48]  The first draft of the Judiciary Act also gave the Supreme Court the power to appoint the attorney general and gave district judges the power to appoint district attorneys. These provisions were deleted and not replaced, so their appointment reverted to the default under the Constitution: presidential appointment. But the first Congress showed in this draft that they did not think Scalia’s view was at all obvious, settled, or “quintessential.” It certainly reflects that the role of the Attorney General and the U.S. Attorneys was unsettled and fluid in this period.[49]

        Fourth, observers in the early republic indicated the federal judges themselves led what appeared to be prosecutions during the Whiskey Rebellion of 1794, and initiated Alien and Sedition Acts prosecutions in conducting grand juries.[50]

    Fifth, it’s important to study what the states were doing at this time. The states are usually important for understanding original public meaning in order to provide context. But this is especially true for the question of law enforcement, because so much federal law enforcement depended upon the states directly. The federal government had a minor role in criminal law in this era. In some cases, Congress used criminal fines to achieve its limited regulatory goals, but it relied heavily on state officials and state courts, as well as private plaintiffs.[51] When Congress used criminal fines to enforce the Embargo Act of 1807, the government found that it had too few district attorneys, with too little time, to prosecute offenders, and the embargo was made a mockery.[52]

                State constitutions reflect how the founding generation understood the role of law enforcement and how it actually enforced the law. State constitutions adopted separate branches, and often declared a separation of powers explicitly, unlike the federal Constitution. Nevertheless, many state constitutions did not reflect Scalia’s formalism. Early state constitutions sometimes placed attorneys general and prosecutors under the judiciary article or judicial sections of their constitutions. These constitutions grouped attorneys general together with judges and judicial officers. [53]   These practices continued in many new frontier states established from the 1790s through the 1830s.[54]  Moreover, some of the constitutions assigned the power of appointment of law enforcement officials to the legislature with no role for the governor, and some assigned this appointment power to the judges.[55]

                For example, Virginia’s 1776 Constitution, drafted by James Madison, George Mason, and other key figures of the founding, gave the governor the power to appoint justices of the peace, but gave the legislature the power to appoint the attorney general, and gave judges the power to appoint sheriffs, coroners, and constables.[56] The founders clearly did not share Scalia’s opinion here.

                For those who are skeptical of originalism, this history of prosecution may confirm how difficult it is to discern clear, stable interpretive binding meaning from nuanced, complicated and multifaceted sources and practices. For those who subscribe to original public meaning, this history shows that the design of the executive branch is far more open-ended than many ostensible originalists have claimed.

 

III. Structural Independence for Quasi-Judicial DOJ Officers?

                1n 1870, Congress created the Department of Justice in order to reduce the partisan patronage in hiring government lawyers, and to professionalize government lawyers.[57] Following the corruption scandals of the 1870s, Congress passed the Pendleton Act of 1883 to establish the civil service in the executive branch for lower bureaucratic appointments. A few years later, Congress created the Interstate Commerce Commission, the model for independent agencies, with job security and staggered long terms, that proliferated through the twentieth century.[58] This wave of professional reform lay a foundation for independence from partisans in the executive branch, but these reforms were limited in their scope and extent. It is time to debate whether to elevate these reforms into the upper echelons of the Department of Justice, from the Attorney General down to the U.S. Attorneys.

                Myers v. United States held that Congress cannot limit presidential power to remove executive officials.[59] But the equally canonical precedent Humphrey’s Executor distinguishes executive offices from “quasi-judicial” and “quasi-legislative” offices. As noted in the introduction, the office of United States Attorney General has often been called as “quasi-judicial” (or recognized as having “quasi-judicial” features) long before Humphrey’s Executor.[60] This was Attorney General Caleb Cushing’s frequently cited formulation. Attorney General Edward Bates similarly wrote, “the office I hold is not properly political, but strictly legal; and it is my duty, above all other ministers of state, to uphold the law and to resist all encroachment, from whatever quarter, of mere will and power.” Other parts of the Department of Justice are quasi-judicial, such as the Office of Legal Counsel and the Solicitor General.

                Thus, if the Attorney General and parts of the DOJ are quasi-judicial, they might be structurally removed from unitary control, so long as the structure does not intrude upon or obstruct the President’s duty to take care that the laws be faithfully executed. Humphrey’s Executor held unanimously:

The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter’s will.[61]

Thus, Congress could take parts of the Department of Justice and refashion them in the model of independent commissions or other reforms fixing the terms and forbid their removal except for cause.

                If one of the core problems is the crony-ization of the office of the Attorney General itself, can that office be redesigned for more independence? Could Congress forbid the removal of the Attorney General from office except for cause? Lower courts have confronted the problem of a single head of an agency who can be removed only for cause. In PHH v. CFPB, the D.C. Circuit first held that a single head cannot have such insulation, because it concentrates too much executive power in one person separate from presidential control. The D.C. Circuit then reheard the case en banc and upheld the structure. The CFPB appears to be more quasi-legislative and quasi-judicial than the DOJ, or at least judges are more likely to distinguish them. It is likely that courts would find such insulation of the Attorney General to interfere with the president’s executive power under the Vesting clause and his or her duties under the Take Care/Faithfully Execute clause. Too much executive power would be concentrated in an insulated principal officer. Such a proposal seems unlikely to survive a challenge.

                Could the Attorney General’s office be turned into a commission with staggered terms to avoid the concentration problem in PHH? Could the Attorney General be turned into an Attorneys’ Commission, or a Justice Commission with staggered terms? Article II does not explicitly forbid such a structure, but it might implicitly.  The Appointment clause states:

Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

A “head” of a department might not be limited to a single person, but it depends how one reads “head.” It’s unclear if a “head” of a department was ever multiple in England or the American Founding, and no department today is headed by a commission, even if there are many independent agencies under those departments. It’s plausible to consider such a commission of Attorneys General with staggered terms. But it’s more plausible that federal courts would find this design violates Article II. The lesson from commissions is that an even number of commissioners leads to paralysis, so such a structure would probably need to be an odd number of commissioners to make sure the president can take care that the laws be faithfully executed.

                Given the Constitutional challenges for such a novel design of a department head, perhaps it makes more sense to focus on more plausible designs. Congress could retain the single Attorney General who serves at will, but other principal officers could be turned into a bipartisan staggered commission under the Attorney General, with protection of for-cause removal only. Principal officers can be given such job security.[62] Instead of a hierarchy of a Deputy Attorney General, an Associate Attorney General, and Assistant Attorneys General as heads of DOJ offices, imagine a Justice Commission under the Attorney General. The Attorney General and perhaps the Deputy AG would remain from the old unitary structure, but they would join a commission of Assistant Attorney Generals who supervise the offices. Because these are principal offices, the president would have to nominate and the Senate confirm.[63] But a statute could require bipartisan membership. The terms also could be staggered and set for a number of years to have crossovers from an earlier administration.

                One possible structure that would avoid interfering with the executive power would be members who serve five-year terms removable only for cause. Each president gets to name one at the beginning of his or her term, and then a new one each year. Let’s imagine that there are five Assistant AG members who are part of this independent structure and rotation, but there are four additional members who also sit and vote on the commission: the Attorney General, a Deputy AG, and two Associate AGs. From the beginning of every presidential term, the president will have named five of the nine members, a majority. But one of those new appointees will be an assistant with job security, and thus may be more free to be a swing vote, a conscience on the committee, and perhaps a whistleblower. After that first year, the president gradually increases his or her majority. One key point is that the commission always would always a hold-over from the previous administration to at least be a possible check on the DOJ, cronyism, or election year rigging. That’s why the terms would be five years. Putting someone on the inside of the DOJ from the opposing party is important even if his or her vote has limited power in the minority.

                Even less complicated is the possibility of creating independent commissions with the DOJ that do not include the Attorney General.[64] The Office of Legal Counsel is more than quasi-judicial. It is self-conceived as almost-judicial. It has a norm of following precedent substantively, so perhaps that norm could be reinforced with staggered terms and entrenched officers from the last administration. One can imagine the Solicitor General being turned into an independent Solicitors’ Commission with a similar effect, encouraging a more judicious, reliable, and consistent approach to cases. It would be slightly more difficult for the Solicitor General to reverse earlier positions if there are hold-overs from a previous administration. The rule of law benefits from more consistency and from having a different perspective in the room to challenge ideological thinking.

                There are other offices that could be re-created on such an independent model, such as the Office of Legal Policy or the Office of Legislative Affairs. The DOJ’s Inspectors General have been praised for their independence and their role as watchdog, and that norm can be reinforced structurally with job security.[65] The structure of the FBI reflects a part of the independence model. The director may be removed at will, as we now know, of course. But the director is appointed to a 10-year term. The Inspectors General should have a similarly long term. But the FBI, to be clear, may arguably be less appropriate for additional job security, because its role is less quasi-judicial and more investigatory and executive.

                Another possible reform is outside of Main Justice. A statute could protect the U.S. Attorneys from presidential removal at will. Instead, they could be removable only for cause. This reform would limit the president’s power to dictate law enforcement and prosecution, but it would acknowledge the expectations of judicious and independent decision-making by prosecutors a bit more insulated from partisan pressures. Recall Alberto Gonzales and the 2006 firing scandal.[66] These reforms might frustrate a president, but that is the price of protecting prosecutorial fairness and independence from political pressures and partisanship.

Conclusion

                “The President shall take Care that the laws be faithfully executed.” Officers take an oath to “faithfully execute” their offices.[67] Our current structures and norms of partisanship, self-dealing, and cronyism are not conducive to faithful execution. This historical overview of the Attorney General’s office shows the erosion of the norms of professionalism and independence and a building threat to the rule of law. But the history of the Founding Era was less rigid and formal about executive power and institutional design, which also suggests that we can be more flexible and creative about the design of these offices and the DOJ today. Congress should borrow from the independent commission/independent agency model to restore professionalism and independence structurally, to reinforce those norms, and restore the impartial rule of law.

                


[1] Larry Tye, Bobby Kennedy 458 n. 133 (2016) (citing John P. Roche, “The Second Coming of R.F.K.,” National Review, July 22, 1988, p. 34.

[2] See Caleb Cushing, A Report of the Attorney General, Suggesting Modifications in the Manner of Conducting the Legal Business of the Government: Message from the President of the United States, H.R. Exec. Doc. No. 33-95, at 6 (1854). See also Caleb Cushing, Office and Duties of the Attorney General, 6 Op. Att'y Gen. 326, 334 (1854). Cushing also noted that Congress established the office of Attorney General “in organizing the judicial business of the United States.”

 

[3] The attorneys general who became Supreme Court justices: Roger Taney, Nathan Clifford, Joseph McKenna, William Moody, James McReynolds, Harlan Fiske Stone, Frank Murphy, Robert Jackson, and Tom Clark.

[4] These include Edmund Randolph, William Wirt, Caleb Cushing, Evarts, Hoar, Homer Cummings (1933-39), William Rogers, Elliot Richardson,

[5] Shugerman, The Creation of the Department of Justice: Professionalization Without Civil Rights or Civil Service, Stan. L. Rev. (2014)

[6] Doris Kearns Goodwin, Team of Rivals.

[7] Shugerman, The Creation of the Department of Justice, 66 Stan. L. Rev. 121 (2014).

[8][8] Crittenden was close to Zachary Taylor, but he was the quintessential politico, having served two terms in the U.S. Senate, two years of another Senate term, a term as Governor of Kentucky, and a short earlier stint at U.S. Attorney General in 1841. He did not get his position as a crony insider. Biographical Directory of the United States Congress; Paul Finkelman, "Crittenden, John J. (1787–1863),” in Leonard W. Levy and Kenneth L. Karst. Encyclopedia of the American Constitution.

 

 

[9] Nancy V. Baker, Conflicting Loyalties: Law and Politics in the Attorney General’s Office 67 (1992).

[10] Walker Lewis,  Without Fear of Favor: A Biography of Chief Justice Roger Brooke Taney 122 (1967)

[11] William Lyon McKenzie, The Life and Times of Martin Van Buren: The Correspondence of His Friends, Family and Pupils 197 (1846)

[12] David Herbert Donald, Lincoln 88 (1995); Helen L. Springer, “James Speed,” 11 Filson Club History Quarterly 3 (July 1937).

[13]. KACZOROWSKI, THE POLITICS OF JUDICIAL INTERPRETATION: THE FEDERAL COURTS, DEPARTMENT OF JUSTICE, AND CIVIL RIGHTS, 1866-1876, at 38-40 (1985)

[14]. Talk at the Capital About the Resignation of Mr. Hoar.

[15]. Kaczorowski at 80-81.

[16]. KACZOROWSKI, THE POLITICS OF JUDICIAL INTERPRETATION: THE FEDERAL COURTS, DEPARTMENT OF JUSTICE, AND CIVIL RIGHTS, 1866-187 at 85-87.

[17] "Hon. Edwards Pierrepont on the Presidential and Gubernatorial Candidates Sound Arguments for the Support of the Republican Nominees," The New York Times. October 31, 1872. p. 3.

[18] https://www.nytimes.com/1876/03/07/archives/attorney-general-pierrepont-harmony-existing-between-himself-and.html

[19] Jean Edward Smith, Grant (2001); H.W. Brands, The Man Who Saved the Union (2012); Chernow, Grant; West's Encyclopedia of American Law (2005), "Pierrepont, Edwards" p. 447, vol. 2

[20] Baker 109,  Coben, A. Mitchell Palmer: Politician 53-57.

[21] Baker 110.

[22] Stanley Coben, A. Mitchell Palmer: Politician 150-54 (1963)

[23] Baker 112.

[24] Giglio, H.M. Daugherty and the Politics of Expediency, 82.

[25] Baker 115

[26] Hoover, The Memoirs of Herbert Hoover, 48

[27] Hoover, The Memoirs of Herbert Hoover, 54

[28] Baker

[29] Baker 118, Giglio, H.M. Daugherty, 124-30,  135-37, Murray, The Harding Era, 432-33, C. Vann Woodward, Responses of the Presidents to Charges of Misconduct, 244-47 (1974).

[30] Federal Writers' Project, Vermont; a Guide to the Green Mountain State, 255 (1934).    

[31] Baker, Conflicting Loyalties, 21.

[32] https://www.nytimes.com/1956/09/11/archives/homer-cummings-exus-aide-dies-attorney-general-193339-under.html

[33]John F. Stack, At War with Civil Rights and Civil Liberties 75 (2006). p. 75

[34] A different Robert H. Jackson, of New Hampshire, served on the Democratic National Committee as secretary in 1932, causing some biographical confusion. Robert H. Jackson, That Man: An Insider's Portrait of Franklin D. Roosevelt 8 (2003).

[35] Baker, Conflicting Loyalties, 78-79.

[36] Alexander Wohl, Father, Son and Constitution - How Justice Tom Clark and Attorney General Ramsey Clark Shaped American Democracy 60-67 (2013)

[37] Baker, Conflicting Loyalties, 20-21

[38] Larry Tye, Bobby Kennedy 132 (2016).

[39] Id. at 458 n. 133

[40] John P. Roche, “The Second Coming of R.F.K.” National Review 34 (July 22,1988).

[41] Long string cite here.

[42] Richard Kleindienst, Justice: The Memoirs of Attorney General Richard Kleindienst (1985); Leon Jaworski, The Right and the Power, and Bob Woodward and Carl Bernstein, All the President's Men.

[43] http://articles.latimes.com/1988-07-05/news/mn-5430_1_meese-resigns

[44] Morrison v. Olson, 487 U.S. 654 (1988)

[45] I first published this historical argument in Slate. Shugerman, “Stare Scalia,” April 27, 2018, https://slate.com/news-and-politics/2018/04/republican-senators-obsession-with-antonin-scalia-is-leading-them-to-make-sloppy-mistakes.html. Some of this language in this paper is excerpted from this article.

[46] Id. at _ (Scalia, J., dissenting)

[47] Jurney v. MacCracken, 294 U.S. 125 (1935)

[48] 28 U.S. Code § 546

[49] For the best resource, please see Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789, Maeva Marcus, ed., Oxford University Press, 1992. See also Julius Goebel, Antecedents and Beginnings to 1801, at 490; Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 108-09 (1923).

[50]. Marvin E. Frankel & Gary P. Naftalis, The Grand Jury: An Institution on Trial 12-13 (1977); Letter from Alexander Hamilton to George Washington (Nov. 19, 1794), in Alexander Hamilton and the Founding of the Nation 491 (Richard B. Morris ed., 1957).

[51]. Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law 68, 83 (2012); see also id. at 99, 138-39.

[52]. Id. at 93, 101.

[53] Delaware, Georgia, New Jersey, North Carolina. Maryland’s constitution did not have specific articles grouped the prosecutors with the judges.

[54] Tennessee, Ohio, Louisiana, Indiana Illinois, Michigan.

[55] New Hampshire, Connecticut, Virginia, North Carolina, New York, Tennessee, Georgia: http://avalon.law.yale.edu/18th_century/ga02.asp

 There was another path not taken as a potential alternative in appointing an expanding system of public prosecutors. In 1777, New York created a Council on Appointments, which consisted of the governor and an annually rotating panel of four senators.  The Council appointed all state officers, including justices of the peace, district attorneys, and sheriffs. The Council was designed to limit the governor’s control over the state bureaucracy, and also to limit popular democracy.   From 1777 to 1821, the Council appointed 15,000 officers.  It was heavily criticized, but if it had been designed better, I am curious if it could have been a successful model for a less partisan method of building a prosecutorial system.  It certainly could have been a foundation for a more consensus-oriented, professionally-based system, as the council could have evolved to change the council membership but not the basic structure.  On the other hand, any method of appointment might have succumbed to the Jacksonian democratic wave.

[56] http://www.nhinet.org/ccs/docs/va-1776.htm

[57] Shugerman, Creation of the DOJ, supra.

[58] Jed Handelsman Shugerman, The Dependent Origins of Independent Agencies: The Interstate Commerce Commission, the Tenure of Office Act, and the Rise of Modern Campaign Finance, 31 J.L. & Pol. 139 (2015)

[59] 272 U.S. 52 (1926),

[60] See Caleb Cushing, A Report of the Attorney General, Suggesting Modifications in the Manner of Conducting the Legal Business of the Government: Message from the President of the United States, H.R. Exec. Doc. No. 33-95, at 6 (1854). See also Caleb Cushing, Office and Duties of the Attorney General, 6 Op. Att'y Gen. 326, 334 (1854). Cushing also noted that Congress established the office of Attorney General “in organizing the judicial business of the United States.”

[61] 295 U.S. 602 (1935)

 

[62] See, e.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd

[63] See Edmond v. United States, 520 U.S. 651 (1997); cf. Lucia v. U.S., 585 U.S. ___ (2018)

 

[64] For more on these themes generally, see Neal Katyal, “Internal Separation of Powers,” 115 Yale L. J. 2314 (2006).

[65] See Jack Goldsmith, “Independence and Accountability at the Department of Justice,” Jan 28, 2018, LawFare, https://www.lawfareblog.com/independence-and-accountability-department-justice

[66] In 2006, around the same time as the Nifong/Duke scandal, eight federal U.S. Attorneys were relieved of their duties, too.  A report by the Inspector General of the Justice Department concluded that "there was significant evidence that political partisan considerations were an important factor" in the firings. The allegations are that the Attorney General Alberto Gonzales and other White House officials fired three prosecutors for investigating Republican politicians, two others were fired for not investigating  Democratic politicians, and a sixth, then-New Jersey U.S. Attorney Chris Christie (yes, that Chris Christie) avoided his firing by investigating Democrat Robert Menendez towards the end of his Senate Campaign (an investigation that resulted in no charges).  Christy became governor three years later.

Also in 2006, U.S. Attorney Steven Biskupic prosecuted Georgia Thompson, a career civil servant in Wisconsin for allegedly steering a state contract to a travel agency owned by supporters of Democratic Governor Jim Doyle.  Thompson’s conviction for mail fraud and misapplication of federal funds became a centerpiece in the Republican campaign against Doyle.  A year later, the Seventh Circuit Court of Appeals overturned the conviction, finding that the prosecutions case was “preposterous” and without evidence, that the agency had submitted the lowest bid, that there was “not so much of a whiff” of impropriety,” and that Thompson was “innocent.”  The Court ordered her immediate release.  It turns out that, in 2005, U.S. Attorney Biskupic had been on a list of U.S. Attorneys to be considered for firing, compiled by the U.S. Attorney General’s chief of staff for not bringing voter fraud cases against Democrats. After Biskupic indicted Thompson, his name came off of that list.

[67] For more on this argument, see Kent, Leib, and Shugerman, “Faithful Execution and Article II,” https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3260593 and Leib and Shugerman, “Faithful Execution and Fiduciary Constitutionalism,” forthcoming Geo. J. L. Pub. Policy (2018); https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3177968


[1] http://www.historycommons.org/context.jsp?item=a1969ittlawsuit#a1969ittlawsuit