INTRODUCTION I. GOVERNMENT LAWYERS AND PROSECUTION IN THE EARLY REPUBLIC II. PROFESSIONALIZATION IN THE LATE 1860S AND 1870 III. DEPARTMENT OF JUSTICE ACT A. The DOJ Act's Beginnings and the Tenure of Office Act, 1865-1869 B. The Passage of the DOJ Act, 1870 C. Why the "Father of the Civil Service" Failed to Install Civil Service in the DOJ IV. A FALSE START CONCLUSION APPENDIX: ASSISTANT U.S. ATTORNEYS, 1871-1876 INTRODUCTION
The Department of Justice (DOJ) was created in 1870, after almost a century of disorganization and confusion among the federal government's lawyers. It has been treated like common sense that the DOJ was created to increase the federal government's power in the wake of the Civil War and to enforce civil rights during Reconstruction. (1) For example, one recent book located the DOJ's creation in the general trend of building the modern federal bureaucracy "[t]o [e]nlarge the [m]achinery of [g]overnment," (2) and a set of recent articles explained the DOJ as a Reconstruction project for the protection of ex-slaves' civil rights. (3) This Article contends that the act creating the DOJ, the Act to Establish the Department of Justice (DOJ Act), (4) had different purposes and opposite effects. It has been overlooked that the DOJ Act eliminated the primary tool of the federal government for keeping up with a surge in postwar litigation: outside counsel. From 1864 to 1869, the federal government had paid over $800,000 to such "outside counsel." (5) The DOJ Act essentially cut the equivalent of about sixty district judges or forty assistant attorneys general from the federal government--about one-third of the federal government's legal staff--and replaced them with only one new lawyer, the Solicitor General. (6)
The founding of the DOJ actually undermined Reconstruction, and it had more to do with "retrenchment" (budget cutting and fiscal conservatism) and anti-patronage reform. This Article's new interpretation contends that the DOJ's creation was actually the leading edge of another significant development in American legal history: the professionalization of American legal practice. Many legal historians have identified the 1870s as a major turning point toward the modern legal profession. (7) From the 1860s through the 1870s, a cadre of Republican reformers was working on a combination of the DOJ Act, civil service reform, bureaucratic independence, and the founding of modern bar associations. (8) One of the most significant developments of the antebellum era was the rise of party machines and political patronage, from President Jackson's and President Van Buren's Democrats in the 1820s, to the Whigs in the late 1830s, and eventually to the Republicans, as well. (9) As soon as the Civil War ended, a new reform movement emerged, focusing on professionalization and civil service (restructuring government employment by merit, competitive testing, and job security, rather than political patronage).
In the 1860s and 1870s, Republican lawyers led the reform effort to professionalize the bench and bar. It has been overlooked that the congressman who led the DOJ effort, Thomas Jenckes, was also known as the "Father of the Civil Service," (10) and that his allies led the bar association movement. A substantial part of this Article is based on Representative Jenckes's voluminous papers and letters, which are now housed at the Library of Congress. These professionalization efforts reflected a coherent agenda of (1) separating law from partisan politics; (2) establishing norms of expertise; (3) creating institutions for regulating legal practice; and (4) making these positions more exclusive. Reformers perceived that outside counsel positions were manipulated for patronage, a problem that infected other, nonlegal government offices. Moreover, the reformers perceived the legal profession as tarnished by too much democracy and low professional standards. Accordingly, they founded the bar association in order to "maintain the honor and dignity of the profession of law." (11) Like the new bar associations, the Department of Justice offered a leaner and cleaner organization of government lawyers, rather than a disorganization of government lawyers that had been bigger and meaner, in the sense of unregulated patronage. The DOJ was a different kind of state building: not growth in the size of a bureaucracy, but more managing, disciplining, and limiting the bureaucracy.
The DOJ's creation was also a first step in another major trend: the rise of bureaucratic autonomy and expertise. This Article is at least a beginning of an answer to a historical puzzle: the Department of Justice is structurally accountable to presidential power to direct and fire officials, and yet it has developed strong norms of professional independence, despite episodes of presidential intervention (e.g., Watergate and the Bush firings). The DOJ's creation reflects an early commitment to those norms of autonomy and expertise. In the debates over the DOJ Act, reformist Republicans argued that the system of spreading law officers throughout the various departments undermined their independence and undercut their power to restrain executive action. These lawyers had been handpicked by the department heads, so they were "yes-men" for the legal answers that the department heads wanted to hear. The opinions from these departmental law officers and from outside counsel were "designed to strengthen the resolution" of the department heads for their preferred course, to "sanction" their actions, even though "there was no authority in any law" for those actions. (12) In addition, congressmen described the "outside counsel" as "departmental favorites," hired by executive officers at their own discretion, and creating even deeper problems of sycophancy, cronyism, and lawlessness. (13)
The Attorney General's opinions would become more authoritative within the executive branch, to be "followed by all the officers of the Government until [they are] reversed by the decision of some competent court." (14) Executive officers--and even the President--would no longer be able to find legal "shelter" from the law officers for their questionable actions. (15) This perspective fit an earlier interpretation that the Attorney General was supposed to be "quasi judicial," more independent from executive and partisan politics, and more powerful in limiting the actions of executive officers. (16) The reformers' vision was to increase professional independence by increasing bureaucratic accountability to the Attorney General, not to the President. Instead of cementing presidential power over government lawyers and merging law and politics, (17) the DOJ Act was itself a structural reform aiming to protect professional independence and separate law from politics. (18)
The professionalization and civil service movements make more sense out of the DOJ's creation than the interpretations based on post-Civil War expansion of the federal government or Reconstruction enforcement of civil rights. Representative Jenckes and the other reformers paid little attention to Reconstruction or to black civil rights. The DOJ Act's drafters emphasized repeatedly that it would cut spending, increase efficiency, and create no new law positions except for the Solicitor General's office. (19) The DOJ Act then played a role in frustrating the Reconstruction effort. U.S. Attorneys in the South were fighting an uphill battle on civil rights in the early 1870s, because they were underfunded by Congress and had so few personnel to help with litigation. (20) The DOJ Act's restrictions prevented federal officials from hiring more prosecutors in the South. (21) The first two Attorneys General who ran the new Department of Justice complained that they had too few lawyers and too few resources to take on the KKK in the early 1870s. (22) Those years witnessed the retreat from Reconstruction.
My argument is not that Congress generally did not care about civil rights in this era, but rather, that the framers of the DOJ Act itself were indifferent to Reconstruction, and some were even hostile towards it. They were not focused on increasing federal power or on civil rights in the South, even as other congressmen worked on other legislation intended to protect civil rights. Congress, of course, is a "they," not an "it." (23) Congress was difficult to manage without any staff, especially after the passing of key Radical Republican leaders. (24)
This Article touches on the Republican reformers' parallel anti-patronage civil service goals from 1865 through 1871, because this context is important for this Article's positive argument about professionalization and retrenchment. The reformers' goals in enacting civil service reform mirror the goals of the DOJ Act: reducing the size of the bureaucracy by about a third, and yielding more exclusivity, efficiency, and expertise. (25) But the details of the civil service reform efforts will be part of a future article that will address two puzzles: Why is the United States unique among Western democracies in not addressing prosecutors with civil service reform? And if civil service reformers led the creation of the Department of Justice, why didn't they include civil service reforms as part of this professionalization project? Representative Jenckes, the "Father of the Civil Service," succeeded in passing a DOJ Act professionalizing government lawyers, but curiously, he did not push to include civil service reforms in the DOJ Act. (26) Representative Jenckes and the Republican Congress achieved many of their professionalization goals in their DOJ Act without relying on civil service provisions.
The organization of this Article is more thematic than chronological. Part I lays out the bizarre decentralized history of government lawyers and prosecution (both state and federal and public and private) in antebellum America. Part II provides the context of...