History, Norms and Conflicting Loyalties in the Office of Attorney General

• Publication year: 2021

History, Norms and Conflicting Loyalties in the Office of Attorney General

Nancy Virginia Baker

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History, Norms and Conflicting Loyalties in the Office of Attorney General

by Nancy Virginia Baker, Ph.D.^*

I. Introduction

A sincere thank you to Patrick Longan and Mercer Law Review for organizing this timely and important symposium on ethics and professionalism in the Office of the U.S. Attorney General. It is such a fascinating office to study, at the nexus of law and politics.

I was a college undergraduate during Watergate, when I first became aware there was an office of attorney general. In graduate school, my interest in it piqued when Edwin Meese was nominated by Ronald Reagan. From then on, I have focused my research on the U.S. Attorney General, especially the duality inherent in the office. Where does or should an attorney general's loyalty lie: with the President or with the law? Can, in fact, the two be separated? After all, the Attorney General exercises power delegated by the President. Many of the Attorney General's roles are political and administrative, not simply legal. Further, in a democracy, the political process is what makes government accountable. Yet, the office is unique among executive agencies and operates under different expectations. To ensure public trust in the fair administration of justice, which is an essential attribute of a stable democracy, law officers follow certain longstanding norms of the office.

A review of historical antecedents will provide some background for understanding how the office developed and what norms developed to serve the public trust.

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II. A Brief History

The Attorney General is one of the institutions of American government consciously drawn from an ancient English office, evolving over the centuries in response to political and economic changes brought by trade, colonization, and the English civil war. By the time the colonies were established, the English office had assumed many of its modern attributes: it was centralized, served government as a whole—not simply the monarch—and had both legal and political responsibilities. Colonial governors appointed attorneys general early on, with the first one—in Virginia in 1643—just thirty-six years after the settlement at Jamestown. By the end of the seventeenth century, almost all of the thirteen colonies had attorneys general, and the ones that did not shared legal officers with neighboring colonies.¹

Colonial attorneys general were not formally independent of the English Attorney General, who remained the de jure law officer. But because of the great distances involved, the Crown's control was nominal. In some cases, colonial law officers had broader responsibilities than their English superior. Early on, for example, colonial attorneys general handled all criminal prosecutions. This was not the case in Britain, where the Attorney General conducted only those prosecutions important to the Crown, leaving routine criminal cases up to the victims to pursue.²

Colonial attorneys general varied on the question of the source of their authority, whether they served the king, the Attorney General back in England, or the colonial governor. A few began to see themselves as serving a broader interest. In the colony of Maryland, for example, the Attorney General was considered to serve "the Publick" when his actions related "to the Liberty of the Inhabitants or their Possessions."³

This view spread as some colonists began to resent their appointed governors. An illustration of the tension between the Attorney General and the Governor occurred in the mid-eighteenth century, when Peyton Randolph, Virginia's Attorney General, quarreled with the Governor over his plan to assess a fee to certify land grants. Randolph believed the order to be unlawful; it had not been authorized by the colonial assembly. The Governor disagreed. Randolph left for London to argue the case before Crown authorities. The Governor retaliated by replacing

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him with George Wythe. But the Governor had misread Wythe, who gave the post back to Randolph as soon as he returned. Wythe was the country's first law professor, and both he and Randolph later became active in revolutionary politics.⁴

By 1776, a fairly coherent system of law officers and courts existed in the colonies. Because of this history, the transition from colonial to state legal systems went fairly smoothly. Every state except Connecticut made express provision for an attorney general, either in their constitutions or by statute. Some states—such as New York—designated the Attorney General as the representative of the people, not the government.⁵

There was no national Attorney General at this time, although the Continental Congress considered appointing one. The proposed law officer would have had the duty of prosecuting suits and giving advice "on all such matters as shall be referred to him by Congress."⁶ No action was taken on the proposal, leaving the Continental Congress to engage private attorneys to prosecute on its behalf in the state courts, generally over debts incurred during the Revolutionary War. This was fine with many legislators, who were suspicious of a national government.⁷

This suspicion began to wane by the time of the Constitutional Convention in 1787. Even so, neither in debates nor in the text of the Constitution was an attorney general for the new nation mentioned. The Constitution did pave the way for one, though. First, Article II implies a need for an attorney general to provide advice to the President, especially to ensure that the President "shall take [c]are that the [l]aws be faithfully executed."⁸ Second, the division of power between the branches and between national and state governments meant that national adjudication was inevitable. For this, a lawyer representing the U.S. government in court would be needed.

The first bill introduced in the U.S. Senate proposed an office of Attorney General along with the lower federal court system. The bill was assigned to a committee on the second day of business but then it stalled. Anti-federalist members resisted nationalizing courts and legal

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issues. A concurrent congressional debate on the Bill of Rights re-invigorated their commitment to state sovereignty. Finally, the Judiciary Act of 1789⁹ passed, but only after the statutes creating the Departments of State, War and Treasury. The relevant part reads:

And there shall be appointed . . . a meet person learned in the law to act as attorney for the United States . . . who shall be sworn or affirmed to a faithful execution of his office, 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 shall receive such compensation for his services as shall by law be provided.¹⁰

The Act identifies the Attorney General's client as the United States, not the U.S. President or Executive branch. While the method of appointment is not specified, it was understood to provide for presidential nomination with the advice and consent of the Senate, as with other executive officers. Draft versions indicated the Attorney General was to be appointed by the district courts. This was not a radical proposition: state attorneys general often were associated with the judiciary. Some anti-federalist senators, however, objected to court appointment. As Senator William Maclay of Pennsylvania argued, it would "draw by degrees all law business into the Federal Courts."¹¹

In important ways, the Act distinguishes the Attorney General from other executive officers, with duties distinctly legal in character. The Attorney General would be chief law officer of the nation, officer of the court, and legal adviser, as well as member of an elected administration. As one scholar explained, that made the office "a unique bridge between the executive and judicial branches."¹²

On a more mundane level, another difference existed between the law officer and other executive heads—the lack of formal structure. Unlike their cabinet peers, the earliest attorneys general were part-time and had no staff or even offices. For the first three decades, attorneys general served without transcribing clerks, filing system or desk. They even had to pay for their own heating fuel and stationery, a

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situation that Congress resisted rectifying.¹³ The result was that many early law officers continued their private practices in their hometowns, only occasionally traveling to the nation's capital. This made sense when there was little federal law or litigation. But things began to change as the nation grew and its law business expanded.

To place the Attorney General on par with other Executive branch officers, the issue of residency had to be resolved first. Living outside of the Capitol, the chief law officer was seldom available for cabinet meetings or legal advice, playing a limited role in White House affairs. Both Presidents James Madison and James Monroe tried to entice their attorneys general to move to D.C., with Monroe reasoning that "[t]he Attorney General has been always, since the adoption of our Government, a member of the executive council."¹⁴ With the appointment of William Wirt in 1817, Monroe finally had success. Wirt moved to Washington and served as Attorney General for twelve years, the longest tenure to date.¹⁵

The office, however, remained primarily a legal one. Because attorneys general received half of the salary of other executive officers, they were expected to maintain their private law practices. Far from being seen as a conflict of interest, private practices brought important benefits, keeping attorneys general abreast of the law and...