The creation of the Department of Justice: professionalization without civil rights or civil service.

• Author: Shugerman, Jed Handelsman
• Position: III. Department of Justice Act B. The Passage of the DOJ Act, 1870 through Conclusion, with footnotes, p. 148-172

2. The Passage of the DOJ Act, 1870

   The traditional accounts of the DOJ's creation emphasize that the Civil War had produced a wave of government litigation: cases involving treason, government revenues, confiscation, "titles to property," personal liberty, and "all the numerous litigations which can arise under the law of war." (162) More recent articles by Norman Spaulding suggested that Congress established the DOJ to enforce Reconstruction and civil rights. (163) Spaulding then presented an intriguing puzzle: why would a Republican Congress give the President and Attorney General so much power over a new law department immediately after President Andrew Johnson and Attorney General Henry Stanbery had just precipitated arguably the greatest constitutional crisis concerning executive power in American history up until that point? (164) In light of "the centralization of control over the legal work of the executive branch in the office of the Attorney General," Spaulding wondered why "no major structural reforms were established to protect the independence of the office and prevent the embarrassment of law by politics." (165) To the contrary, I suggest that the drafters of the DOJ Act believed that the creation of a department under the Attorney General was itself the structural reform that would promote professional independence by removing federal lawyers from the politicized departments and placing them under more professional leadership.

   There are several problems with the conventional explanations. First, as for the interpretation that the DOJ was designed to increase the federal government's capacity to manage a growing legal caseload, the deep cut of outside counsel without replacements undermines this suggestion. It is possible that professionalizing and restructuring government lawyers might have increased efficiency, so that a smaller team of lawyers could have been more effective that the preexisting system. However, the elimination of outside counsel was no small cut. It was a deep, dramatic cut, and it sharply limited the flexibility of executive departments and even the Attorney General to respond to new legal work. It is hard to imagine that Congress was really focused on big-picture efficiency if the DOJ Act weakened the federal government's ability to enforce the new federal taxes on income, liquor, and tobacco. The "efficiency" of the DOJ Act was more of an antiwaste, anti-patronage, and downsizing reform. The DOJ Act probably produced a less efficient system, if one balances the benefits of limiting patronage against the costs of decreased law enforcement capacity and decreased tax revenue.

   As for the civil rights interpretation, there is little evidence that the DOJ was intended to bolster civil rights enforcement. In the debates, congressmen made no mention of how the new department would help (or even hinder) federal law officers enforce civil rights legislation. The members of the Joint Select Committee on Retrenchment generally were unsympathetic to Reconstruction and to civil rights enforcement, and they cared much more about limiting the federal government and cutting the federal budget. Again, the details of the DOJ Act itself, in eliminating outside counsel, undercut the notion that the DOJ was meant to supply additional lawyers to prosecute Reconstruction. Moreover, it is very important to note that in the congressional debates, Republicans who supported Reconstruction did not argue that the new department would strengthen federal law enforcement in the South. Few Democrats who opposed Reconstruction raised such concerns, and the authors of the DOJ Act assured them that the new department would not cover military lawyers and would not have jurisdiction over military questions at a time when the military continued to play a significant role in the South. (166) The opposition to the bill was "largely perfunctory." (167)

   One assumption in these earlier accounts has been that a new law department was designed to strengthen President Grant's power. The first problem with this explanation is that the reformist Republicans who drafted and backed the bill had grown skeptical of President Grant, as he was favoring the Radicals and was not fulfilling any of the reformers' hopes that he would limit patronage in his administration. (168) But even if Republicans trusted President Grant, the DOJ Act did not change the President's formal control over either the Attorney General or other principal law officers. The revised Tenure of Office Act gave President Grant more control over cabinet officials, but it continued to block his power to fire U.S. Attorneys and other principal officers. Putting the lawyers in one department arguably might give a President more ability to monitor those lawyers, but the Act's authors believed that one centralized department would unify, strengthen, and protect those lawyers.

   The congressmen who crafted the DOJ Act framed centralization as a way to promote independence, professionalism, and legal checks within the executive branch. It has been suggested that the DOJ was designed to cement the President's authority to control the government's legal work. (169) However, the congressional debates do not reflect this goal. Before the DOJ was created, department heads controlled the law officers and hired their own outside counsel.

   Representative Jenckes and others offered stories of rampant factional battles and cronyism in the various departments, especially the Treasury Department. (170) The Treasury Department was a gold mine for patronage: it had a combination of many offices, access to money and taxation, and lots of power. The stories of corruption were particularly relevant to the founding of the DOJ because the Treasury Department had command over U.S. Attorneys, and the Treasury Department's legendary spoils framed the debate and heightened the urgency of reform. The office of the Attorney General was squeaky clean and professional, particularly when contrasted with Treasury.

   During the Grant Administration, reformers focused on the problems under Treasury Secretary George Boutwell. Secretary Boutwell had a reputation for high-minded ideals, (171) but the position of Treasury Secretary demanded political realism and Secretary Boutwell was a target of criticism. Henry Brooks Adams, the grandson of President John Quincy Adams and the great-grandson of President John Adams, reported that the Treasury Department was filled with "plunderers," "terror," and "distrust[]," and was plagued by a battle over spoils and incompetence. Treasury Secretary George Boutwell "inaugurated another inquisition of his own, by which he might test the political fidelity of his subordinates." (172) According to Adams, Secretary Boutwell distributed the spoils of the Treasury Department from the moment he took office. Secretary Boutwell was an opponent of civil service reform, arguing that the President should have political discretion to remove officers and replace them with his own administration. (173) The Nation, the publication of the reformist Republicans, complained that Secretary Boutwell, though highly competent in fiscal management, was also a devoted distributor of patronage, saturated with the spirit of "practical politics," and an obstacle to reform. (174) It described him as a "thorough-bred politician of the old school," "thick as ... thieves" with other patronage politicians, a partisan who would block reform. (175) Adams claimed that Secretary Boutwell later expressed that he was "profoundly disappointed and disgusted with the mistakes which they had made" in removing qualified public servants. (176) One reason that a law department was defeated in the years before the Civil War was that the earlier Secretaries of the Treasury and of the Interior were protecting their turf; they did not want to relinquish control over district attorneys and law officers and the political power that came with additional offices. Secretary Boutwell was a lawyer himself, and he was actually sympathetic to the professionalization of lawyers, and thus may have tolerated reform and reorganization more than his predecessors. (177)

   Meanwhile, the Attorney General's office had almost no employees, so it was not perceived as corrupted by spoils and faction. Moreover, the recent Attorneys General had a strong reputation for professionalism, ethics, and opposition to patronage. (178) Centralizing the law officers under the Attorney General meant more independence, not less, in the context of the late 1860s.

   With a new administration and a new Congress, the reformers put the law department back on the agenda. While Representative Jenckes was back to work on the DOJ Act in the Joint Select Committee on Retrenchment, Representative William Lawrence of Ohio was working on a similar law department bill in the House Judiciary Committee. Representative Lawrence had a much stronger track record for supporting civil rights and voting rights, including his role in drafting parts of the Fourteenth Amendment. (179) Yet he also focused on cutting spending, reducing debt, and lowering taxes. Lawrence proposed eight separate bills in the Forty-First Congress that had fiscally conservative goals while he was working with Representative Jenckes on the DOJ Act. (180) He eventually let Representative Jenckes and the Joint Select Committee on Retrenchment take the lead in the effort. Moreover, one of Representative Lawrence's primary arguments for his DOJ Act was that it would reduce spending, not only by eliminating outside counsel, but also by eliminating several full-time salaried offices. (181) It is worth noting that at the same time, Representative Jenckes was making an argument for civil service reform that had a striking parallel to the DOJ Act. Representative Jenckes predicted that, with the passage of civil service reform, "the number of offices may be diminished one third, and the efficiency...