Attorney General and Department of Justice

Author:Burke Marshall

Page 134

The job of attorney general for the United States, as it was then called, was created by the JUDICIARY ACT OF 1789. The last sentence of that remarkable statute called for the appointment (presumably by the President) of "a meet person, learned in the law, ? whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments, and [who] shall receive such compensation for his services as shall by law be provided." The first attorney general was EDMUND RANDOLPH, and his salary was $1,500. He had no office or staff provided by his government.

There have been seventy-three attorneys general between Randolph's tenure and that of William French Smith (1981?1985), counting JOHN J. CRITTENDEN twice. From the beginning they have been members of the President's cabinet?fourth in rank after the secretaries of state, treasury, and war (now defense). Since 1870 the attorney general has also been head of the Department of Justice. For the most part, the attorneys general have been citizens of outstanding achievement and public service, although not necessarily of extraordinary professional and intellectual ability; the latter qualities have traditionally been associated with the SOLICITOR GENERAL. Nine attorneys general subsequently sat on the Supreme Court of the United States, two as Chief Justice (ROGER B. TANEY, 1831?1833, and HARLAN F. STONE, 1924?1925); three were nominated to that bench but never confirmed; one was confirmed but never took his seat (EDWIN M. STANTON, 1860?1861); and at least two turned down nominations to the Court (Charles Lee, 1795?1801, as Chief Justice, and LEVI LINCOLN, 1801?1805). Only three attorneys general have had their careers seriously eroded by personal and professional misconduct (Harry M. Daugherty, 1921?1924; John N. Mitchell, 1969?1972; and Richard G. Kleindienst, 1972?1974). Of these, Daugherty was acquitted of charges of attempting to defraud the United States in the Teapot Dome scandal, Mitchell served a prison term for a conspiracy to obstruct justice in connection with the WATERGATE affair, and Kleindienst entered a plea bargain of guilty to a MISDEMEANOR involving his veracity in congressional testimony.

The Department of Justice grew with government after 1870, but at an increasingly accelerated rate, expanding enormously in the 1970s and early 1980s. The budget of the Department for fiscal year 1984 was over three billion dollars; it had increased by almost fifty percent since the beginning of 1981. In addition to the attorney general, top officials now include one deputy attorney general, five deputy associate attorneys general, one associate attorney general, five deputy associate attorneys general, the solicitor general, ten assistant attorneys general, and ninety-four United States attorneys (with coordinate United States marshals), all appointed by the President and all bearing responsibility of some sort in the litigation and advice-giving functions of the Department. These officers are backed by the vast investigative resources of the FEDERAL BUREAU OF INVESTIGATION (FBI). In addition, the Department runs the Immigration and Naturalization Service, the Federal Bureau of Prisons, the Drug Enforcement Agency, and various research and public policy arms.

Public perception of the department as a major instrument of public policy, with a significant effect on the quality of American society, started roughly with the JOHN F. KENNEDY administration in the 1960s, when ROBERT F. KENNEDY (1961?1964) was appointed attorney general by his brother. Before that, the department mostly functioned as a professional law office charged with enforcing the few federal criminal statutes that existed, representing the government in other litigation, and giving advice to the President, especially on questions requiring construction of the Constitution. There had been sporadic periods, however, during which the department temporarily emerged as an important arm of federal government.

The department was established by Congress primarily as the instrument of government to work with the FREEDMEN ' SBUREAU in implementing the CIVIL RIGHTS statutes that accompanied the passage of the Civil War amendments. The first attorneys general to run the Department?Amos T. Akerman (1870?1872) and George Henry Williams (1872?1875)?were accordingly deeply engaged in the temporary and unsuccessful efforts then to protect the ideal of racial equality through...

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