by on By Daniel Cotter*
The Office of the Attorney General was established in 1789 as part of The Judiciary Act of 1789. The Act, among other things, established the makeup of the Supreme Court and its exclusive jurisdiction and also the lower court structure. One of the powers the Act gave to the Supreme Court, writs of mandamus, was the subject of the famous Supreme Court case, Marbury v. Madison. The Judiciary Act of 1789 also established the Office of the Attorney General.
Given recent actions of the current Attorney General, William Barr, as well as the inherent conflicts we have seen in past administrations, we must revisit the independence of the Office of the Attorney General and its location within the executive branch. The states’ model for an independent Attorney General is a good one to replicate, and would return the position to what the Founding Fathers intended. An Attorney General beholden to the President in any Administration is a recipe for partisanship and protecting the President instead of acting as an independent law enforcement official ensuring the laws are faithfully executed.
The Judiciary Act of 1789
As noted, the Act established the Office of the Attorney General. Specifically, Section 35 of the Act provides:
And there shall also be appointed a meet person, learned in the law, to act as attorney-general 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 . . . .
However, the original drafts of the Act contemplated that the Supreme Court would appoint the Attorney General, as noted by Charles Warren in his Harvard Law Review article, New Light on the History of the Federal Judiciary Act of 1789.
The language that eventually emerged in Section 35 was not definitive on the President appointing the Attorney General; rather, it was silent. As history writer David Tollen wrote on the site, Pints of History:
The Framers of the Constitution did not consciously grant the President authority to hire and fire the Attorney General. . . . [T]he first drafts of the Judiciary Act of 1789, written by several of the Framers, said the Supreme Court would appoint the Attorney General. The act’s final draft, on the other hand, said nothing about who would hire or fire these lawyers.
The early Presidents just stepped into the void and made government attorneys part of their administrations.
There is no reason that the office needs to remain as part of the United States executive branch.
States as Potential Models
As Tollen noted, “Forty-eight of our state governors cannot fire their AG at will, so they can’t avoid justice through control of state prosecutors.” Forty-three states elect their attorney generals.
A typical format is found in Illinois. The position is created pursuant to the state constitution, currently at Article V, Section 1 of the 1970 Illinois Constitution. The original Illinois Constitution, adopted in 1818, “authorized the General Assembly to appoint an Attorney General and to regulate his duties by law.” The Illinois Attorney General role was “[a]dapted constitutionally and legislatively over the years to meet the needs of a growing State.” But whether appointed or elected, the Illinois Attorney General has always been independent from, and not beholden to, the Illinois Governor.
Attorney General William Barr and Lack of Independence
Attorney General William Barr is the latest example of why independence of the position is crucial. On March 23, 2020, at President Trump’s daily press conference, he was joined by Barr. This was the only appearance by Barr to date at the COVID-19 press conferences. Barr remarked in part:
We have started to see some evidence of potential hoarding and price gouging. And so, earlier today, the President signed a second executive order, providing the authority to address, if it becomes necessary, hoarding that threatens the supply of those necessary health and medical resources.
. . . It is a crime to engage in prohibited activity.
Barr correctly addressed this issue. What was not addressed at all, though, is the additional powers that Barr and the Department of Justice have requested. According to Betsy Woodruff Swan, in Politico, the “Justice Department has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies.”
Others have expressed deep and grave concerns about the “independence and accountability” of the FBI and Department of Justice (DOJ). Jack Goldsmith, “the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution,” after expressing that the DOJ and FBI are to a large extent independent, wrote in 2018:
Some presidents manage this independence better than others . . . . Donald Trump is not skillful at persuading, bargaining with, or leading his administration. . . . He acts like he doesn’t care about law and has no respect for DOJ, FBI, and their pursuits. When Trump acts this way, he makes it harder for the DOJ and FBI to engage in appropriate accommodations to him at the margins.
He is not the only one. More and more calls for Barr to step down, for there to be independence, are emerging. A good example is the unprecedented, recent call of more than 2,000 Department of Justice alumni for Barr to resign. The statement was issued after Barr personally intervened in the sentencing of Roger Stone, after President Trump made noise about the sentence Stone was facing. The statement declared in part:
Each of us strongly condemns . . . Attorney General Barr’s interference in the fair administration of justice.
. . .
The Justice Manual . . . states that ‘the rule of law depends on the evenhanded administration of justice’; that the legal decisions ‘must be impartial and insulated from political influence’; and that the prosecutorial powers . . . must be ‘exercised free from partisan consideration.’
. . .
And yet, President Trump and Attorney General Barr have openly and repeatedly flouted this fundamental principle . . . . [I]t is unheard of for the Department’s top leaders to overrule line prosecutors . . . in order to give preferential treatment to a close associate of the President, as Attorney General Barr did in the Stone case. It is even more outrageous for the Attorney General to intervene as he did here — after the President publicly condemned the sentencing recommendation . . . .
Such behavior is a grave threat to the fair administration of justice. . . . Governments that use the enormous power of law enforcement to punish their enemies and reward their allies are not constitutional republics; they are autocracies.
. . . But Mr. Barr’s actions in doing the President’s bidding unfortunately speak louder than his words. Those actions, and the damage they have done to the Department of Justice’s reputation for integrity and the rule of law, require Mr. Barr to resign.
Powerful words from a bipartisan group that numbers more than 2,000. Other examples exist. Barr has also been criticized for giving overtly partisan speeches. In a recent interview, Justice Department expert Jed Shugerman stated, “One has to ask why he would get up in front of the Federalist Society or at Notre Dame and give fire-and-brimstone, aggressively partisan speeches. . . . There is almost no precedent for an attorney general to give such partisan speeches.”
This is not to say that President Trump and Attorney General Barr are the first to act politically. As some have reminded those who have raised the lack of independence of Barr, in perhaps the most recent instance of “whataboutism,” Attorney General Eric Holder once famously stated, “I’m still the president’s wingman, so I’m there with my boy. So we’ll see.”
The nation’s top law enforcement officer, and the nation’s law enforcement team, must be independent. As the statement of the DOJ alumni notes, there must be “evenhanded administration of justice.” The DOJ mission statement, posted on its website, ends with this strong mantra: “to ensure fair and impartial administration of justice for all Americans.”
Proposal and Conclusion
As discussed, the First Congress, with knowledge of the government structure and closer to the time of the enabling legislation, proposed the Attorney General be appointed by the Supreme Court. The final Judiciary Act of 1789 did not ascribe the role to any department. Today, we have witnessed an Attorney General who time and time again has shown his allegiance to the President of the United States. Barr has been described as “the most political attorney general we’ve ever had.”
We should help to ensure that the Office of the Attorney General and the Department of Justice that he or she oversees are independent but accountable. We should determine the original intent and meaning of the Founding Fathers. While some such as Tollen have suggested the only way to do this would be by Constitutional amendment, we should follow the guidance of states such as Illinois and follow the wisdom that our greatest Chief Justice, John Marshall, gave us in Marbury: “It is emphatically the duty of the Judicial Department to say what the law is.” The Attorney General should be part of the judicial branch.
As noted above, the “history of the office suggests that the framers considered it a quasi-judicial post, independent from the president. Congress originally established the office with the Judiciary Act of 1789 . . . not the acts establishing executive departments.” The presidential appointment and Senate confirmation that appeared in the final bill were made “undoubtedly so that the AG would be appointed in the same way as federal judges — not as a statement of the office’s constitutional status.” But the Attorney General position was not explicitly part of the executive branch until 1870, as Cornell Clayton wrote, “In 1870, Congress codified this approach in the Department of Justice Act, making the AG the head of an executive department.”
As Clayton concludes, “history reveals that Congress has the constitutional latitude to shape how the Justice Department operates.” A future Congress must tackle this task as soon as possible, to ensure that the DOJ and the Office of the Attorney General do not completely trample the independence required to uphold the rule of law.
* Daniel Cotter is a lawyer practicing in Chicago. He currently is Co-Chair of the ACS Chicago Lawyer Chapter. He is a frequent writer on the Supreme Court and our judiciary, including on Twitter (@scotusbios) and as the author of the recently published book, The Chief Justices (Twelve Tables Press).