D.c. Law


In the early years lawyers of distinction would not have touched the post without a chance of outside earnings or if the requirements had not been relatively easy. The Attorney General did not have to live in Washington or even be there except when the Supreme Court was sitting. William Pinkney, the seventh A.G., threatened to resign upon the mere proposal of a law that would have mandated his presence during sessions of Congress. Caleb Gushing, who served from 1853 to 1857, was the first Attorney General to devote his full time to the job, which by then had become enormous. With only one assistant attorney and two solicitors (not under his direct control), he was supposed to transact the multiplying legal business of a nation of some twenty-five million people, covering three million square miles, whose government was spending around sixty million dollars a year and had worldwide commercial interests. The only solution was to hire outside counselors at tidy fees, which finally provoked a congressional solution.

In 1870 the office was overhauled as part of the post-Civil War modernization of America. The Attorney General was made head of the Department of Justice, given an enlarged staff, and endowed with clearcut law-enforcement functions—as well as a seal with a Latin motto (lately dropped) that read Pro domina justifia sequitur (He prosecutes on behalf of justice). From then on the story is one of departmental growth enfolded within the general expansion of the federal presence, as a parade of Attorneys General have threaded their way among three sometimes conflicting obligations: to enforce the laws as Congress made them, to give effect to Supreme Court decisions, and to implement the policies of the Presidents who chose them.

Individual Attorneys General have gained the spotlight for a variety of words and deeds both epic and trivial. Philander C. Knox earned fame for winning the first big case under the Sherman Antitrust Act (in spite of his previous pro-business credentials as a Pittsburgh lawyer for Carnegie Steel). Knox afterward earned prestige in the Senate and as Secretary of State, but he is endeared to me by his reputed response when Theodore Roosevelt asked his opinion of snatching Panama from Colombia in order to build the canal: “Oh, Mr. President, do not let so great an achievement suffer from any taint of legality.”

A. Mitchell Palmer, Wilson’s third Attorney General, earned a certain grim notoriety by his high-handed detentions and deportations of native and alien radicals during World War I and the Red Scare of 1919-20. Harry M. Daugherty, who succeeded Palmer, got the office as a reward for his services in securing the nomination of President Harding, to whom he was also confidant and adviser. Deeply implicated in the scandals of Harding’s administration, he was tried for fraud in 1927 but went free when one juror out of twelve refused to vote to convict. Daugherty in turn was followed by the dean of the Columbia Law School, the impeccable Harlan Fiske Stone. Consciously named by Coolidge as part of a cleanup, he later became Chief Justice. Coolidge understood that the act of naming a chief law-enforcement officer had, by 1925, acquired a certain public relations weight as a sign of administration priorities. From the 1930s through the 1950s, Presidents Roosevelt, Truman, and Eisenhower, according to their inclinations at the time, chose lawyers who were popularly seen as trust busters, subversives hunters, or corruption fighters.

The seventy-seven Attorneys General who preceded Janet Reno offer her a truly stunning variety of precedents to draw on.

A furor erupted when John F. Kennedy named his younger brother and campaign manager, Robert, who had never tried a case, as Attorney General in 1961. JFK did his best to deflect attack with quips; one source quotes him as saying, “What’s wrong with a fellow getting a little legal training before he goes into the practice of law?” The actual goal of the appointment was to have a trusted counselor at the President’s side in some official capacity. Once again the Attorney Generalship served that purpose; the only novelty was in the blood relationship. Robert Kennedy, who initially did not want the appointment, managed to leave on the department a strong antisegregationist profile. Alone—or at least first- among Attorneys General, so far as I can find, he sent federal marshals into action to protect the civil rights of black Americans by force if necessary—specifically to secure James Meredith’s enrollment at the University of Mississippi.

Ramsey Clark, Lyndon Johnson’s last Attorney General, appears to be the only son of another Attorney General to hold the office. His father, Tom, served in Truman’s cabinet from 1945 to 1949, then went on to the Supreme Court. Of the Attorneys General under Nixon and their varied fates, it is most charitable to say nothing. Ford appointed the legal scholar Edward H. Levi, president of the University of Chicago, from tarnish-removal motives much like those of Coolidge in naming Stone a half-century earlier. Jimmy Carter, as noted, returned to an old pattern by naming his Atlanta friend Griffin Bell. Any statement about more recent appointees runs the risk of partisanship, so I forbear.