Prosecution: United States Attorney

The office of the United States attorney was created by the Judiciary Act of 1789, ch. 20, 1 Stat. 73, which provided for the appointment in each federal district of "a meet person learned in the law to act as attorney for the United States. . .to prosecute. . .all delinquents for [federal] crimes and offenses" (92). The same law established the office of the attorney general, but the attorney general's function at this time was limited to representing the United States in the Supreme Court and advising the president and the heads of the executive departments of the federal government on legal matters. The attorney general had no formal control over the United States attorneys charged with enforcing federal criminal law in their respective districts. Though proposals to grant the attorney general such control were introduced in Congress as early as 1791, legislation to this effect was not enacted until 1861.

In the interim, United States attorneys (or federal district attorneys, as they were then known) occasionally consulted with the attorney general on a voluntary basis. And in certain celebrated cases such as the treason trial of Aaron Burr, the attorney general did participate, at presidential request, in lower federal court proceedings. But the first official grant of supervisory power over U.S. attorneys, however, went to the Treasury Department, not the Justice Department. Any intervention into matters falling with the jurisdiction of the local federal attorneys, moreover, was infrequent. Even after Congress enacted legislation giving the attorney general supervisory authority over United States attorneys in 1861 (ch. 37, 12 Stat. 285 (1861)), it was not until a decade later (after Reconstruction and the Justice Department's creation in 1870), that federal prosecutors came under any meaningful national control.