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The Grimy History of the Attorney General's Office

Stephen Mihm

(Bloomberg Opinion) -- When Congress created the position of attorney general in 1789, it was a part-time gig. The salary lagged well behind other executive positions, and lacked congressional appropriations for office space and supplies. The idea that the occupant could serve as the president’s personal fixer would have seemed absurd at the time.

It no longer seems so absurd. This week, Attorney General William Barr was accused of going “rogue” by House Speaker Nancy Pelosi, who opened an impeachment proceeding against President Donald Trump in the wake of the Department of Justice’s decision against releasing a whistle-blower’s complaint to Congress. 

At the heart of the controversy is a phone call between the president and Ukrainian President Volodymyr Zelenskiy that focused on former Vice President Joe Biden and his son, Hunter Biden. “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the attorney general would be great,” Trump said. 

The Justice Department declined to investigate the allegations even after Michael Atkinson, the inspector general of the intelligence community, elevated it to a matter of “urgent concern.” The department said Barr was not involved in that decision, and added that he never spoke to the president about Biden’s ties to Ukraine. Still, critics are sounding alarms about Barr failing to protect the department’s storied independence from the president and its responsibility to uphold the rule of law.

Attorneys general have been held to that standard for years – and for good reason. Nevertheless, Barr’s predecessors have managed to build up quite a record of cronyism over the years. As with so many flaws in America’s system of government, this one goes back to its founding.

Back then, there was no “Department of Justice,” and the attorney general floated between the three branches of government. “I am a sort of mongrel between the State and the U.S.; called an officer of some rank under the latter, yet thrust out to get a livelihood in the former,” said Edmund Randolph, the nation’s first top lawyer.

Because the position was independent and impotent, the men who filled the position were rarely corrupt or political. In an in-depth analysis, Fordham University legal scholar Jed Shugerman found that most of nineteenth-century appointees tended to be professional lawyers, not political hacks.

The only exceptions surfaced during Andrew Jackson’s administration, which made unprecedented claims of executive power, and during Ulysses S. Grant’s administration, which became infamous for corruption. Otherwise, the office was basically independent, if only because there wasn’t a whole lot it could do to implement the president’s bidding.

In 1870, Congress created the Department of Justice. Shugerman has persuasively argued that this was an important step in the professionalization of law. Congressman Thomas Jenckes, the man most responsible for the new agency, viewed this move as part of a larger housecleaning of the federal bureaucracy, replacing patronage jobs with salaried positions.

But there was a little problem with his plan: It placed the department under the direct control of the executive branch. As legal scholars Bruce Green and Rebecca Roiphe have recently observed, that set up the potential for the appearance, if not the reality, of undue influence. It was only a matter of time before a president decided to abuse his power.

President William Howard Taft was the first who dared to do so, interfering with the criminal investigation of his corrupt interior secretary. This was controversial, but worse was yet to come. 

President Woodrow Wilson eventually elevated a corrupt politician and ally, A. Mitchell Palmer, to the top of the Justice Department. Wilson’s private secretary told the president that the office wielded “great power politically. We should not trust it to anyone who is not heart and soul with us.”

Wilson presided over the erosion of the department’s independence, but his successor, Warren G. Harding, had the audacity to appoint his own campaign manager, Harry Daugherty,  as attorney general. Of course, Daugherty abused the office. He retaliated against congressional investigators and was implicated in a range of corrupt schemes tied to the president, including the Teapot Dome Scandal.

Such men were what Shugerman termed the “crony” model of attorney general. 

President Franklin Roosevelt was no saint on this count. His first attorney general was Homer Cummings, a close political ally and head of the Democratic National Committee. Roosevelt also added to the office’s power, handing it control over U.S. attorneys and marshals. While Cummings wasn’t corrupt, he was far from independent. Indeed, he spearheaded Roosevelt’s infamous attempt to pack the Supreme Court.

Yet the ideal of professional independence remained alive and well among the thousands of men and women who make up the Department of Justice. In the postwar era, the attorney general might have been a political ally of the president – President John F. Kennedy appointed his own brother to the position – but the department maintained a certain independent streak.

Then came President Richard Nixon, who considered the Justice Department his personal fiefdom. Long before the events that led to his impeachment, Nixon squelched an investigation of International Telephone and Telegraph, an important donor to the Republican Party seeking approval for a merger.

“The IT&T thing—stay the hell out of it. Is that clear? That’s an order,” Nixon told Deputy Attorney General Richard Kleindienst, according to a White House tape of the conversation. 

“Okay,” Kleindienst meekly replied.

His boss, Attorney General John Mitchell, occasionally pushed back at Nixon, though without much impact. “It just repels him to do these horrible things, but they’ve got to be done,” Nixon complained. Mitchell eventually joined Nixon’s presidential campaign for dirty deeds that would later lead to prison, replaced by the milquetoast Kleindienst. 

After Nixon resigned in disgrace, it seemed as though the scandal would bring serious reform. One bill proposed in the Senate would have made the Justice Department entirely independent from the executive branch. But Congress couldn’t pull the trigger on such a substantive reform. Instead, hearings on the bill elicited the usual invocations for professionalism and ethics. There was a great deal of handwringing about prosecutorial independence, but not a whole lot of change.

By the 1980s, it was back to the usual problems, with Reagan’s attorney general, Edwin Meese, improperly warning the president about the brewing Iran-Contra investigation. But other administrations resurrected the appearance, if not reality, of an independent attorney general and Justice Department.

Which is what makes the current allegations so unnerving. If true, the whistle-blower’s complaint – that “Attorney General Barr appears to be involved, too” in a scheme to “solicit interference from a foreign country” – confirms that whatever wall of professionalism built since Watergate has been smashed.

Whatever happens, Congress needs to recognize that there’s nothing particularly sacrosanct about the current close relationship between the office of the president, the attorney general, and the larger Department of Justice. It’s a historical accident.

And, as Donald Trump has shown, an accident waiting to happen.

To contact the author of this story: Stephen Mihm at smihm1@bloomberg.net

To contact the editor responsible for this story: Mike Nizza at mnizza3@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen Mihm, an associate professor of history at the University of Georgia, is a contributor to Bloomberg Opinion.

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