Attorney General

The chief law enforcement officer of the United States or of a state government, typically serving in an EXECUTIVE BRANCH position. The individual represents the government in litigation and serves as the principal advisor to government officials and agencies in legal matters.

The attorney general is head of the U.S. JUSTICE DEPARTMENT and chief law officer of the federal government. He or she represents the United States in legal matters generally and gives advice and opinions to the president and to other heads of executive departments as requested. In cases of exceptional gravity or special importance, the attorney general may appear in person before the U.S. Supreme Court to represent the interests of the government.

As head of the Justice Department, the attorney general is charged with enforcing federal laws, furnishing legal counsel in federal cases, construing the laws under which other executive departments act, supervising federal penal institutions, and investigating violations of federal laws. The attorney general also supervises and directs the activities of the U.S. attorneys and U.S. MARSHALS in the various judicial districts. (U.S. attorneys prosecute all offenses against the United States and prosecute or defend for the government all civil actions, suits, or proceedings in which the United States is concerned; U.S. marshals execute all lawful writs, processes, and orders issued under authority of the United States.)

The office of the attorney general was created by the First Congress in the JUDICIARY ACT OF 1789 (An Act to Establish the Judicial Courts of the United States, ch. 20, § 35, 1 Stat. 73, 92–93). The First Congress did not expect the attorney general—a part-time employee with scant pay, no staff, and little power—to play a major role in the emerging federal government. As the members of the First Congress established a system for the enforcement of federal laws, their primary concern was to protect state and individual freedoms and to avoid the creation of a central legal system that would allow the tyrannies they had experienced as American colonists under George III. Therefore, the Judiciary Act gave the attorney general just two principal duties: (1) to prosecute and conduct all suits in the SUPREME COURT OF THE UNITED STATES that concerned the United States and(2) to give an opinion on QUESTIONS OF LAW when asked to do so by the president or heads of other executive departments.

The early attorneys general spent little time arguing before the Supreme Court because few cases had traveled through the nation's developing court system and even fewer warranted Supreme Court review. Together, the first three attorneys general—Edmund Randolph, WILLIAM BRADFORD, and Charles Lee—represented the United States in the Supreme Court only six times in their collective years in office.

Furthermore, early attorneys general were specifically restricted by the Judiciary Act from participating in lower-court actions. District attorneys (known in the early 2000s as U.S.

attorneys) held the authority to represent the United States in district and circuit courts. Each district attorney could independently decide which cases to pursue and on what grounds—a situation that soon resulted in a number of contradictory legal positions for the federal government. Because the attorney general had no power to direct district attorneys in their lower-court litigation, the officeholder was often unaware of litigation that concerned the interests of the United States.

In a letter to President GEORGE WASHINGTON dated December 26, 1791, Attorney General Randolph expressed concern about the limitations of his office and complained specifically about the lack of a defined relationship with the district attorneys. Randolph was the first of many attorneys general to point out that their prescribed duties did not allow them to fully look after the interests of the United States, and he was the first to propose an expansion of the office's duties and jurisdiction.

Ignoring complaints and proposals, Congress remained reluctant to expand the duties of the attorney general and often passed legislation that assigned special legal functions to officials in other government departments. For example, in the early 1800s, Congress created a solicitor of the treasury to handle all suits for the recovery of money or property in the United States—a move that further complicated the attorney general's efforts to fully look after the interests of the government.

With court appearances limited by the lack of both cases before the Supreme Court and jurisdiction to oversee lower-court cases, opinion writing consumed most of the time of early attorneys general. Together, Attorneys General Randolph, Bradford, and Lee wrote more than 40 formal opinions on such diverse issues as IMMUNITY for diplomats, applications for PATENTS, and the choice of directors for the nation's first federal bank. However, early attorneys general were not required to provide the government with written records of their opinions. When WILLIAM WIRT, the eleventh attorney general, took office in 1817, he found that his predecessors had provided no record of their past opinions to guide his deliberations. Understandably, early attorneys general, who received only a small stipend for their services and relied on the private PRACTICE OF LAW for their personal income, spent little money to hire clerks to transcribe and preserve their work. They simply relied on the recipients of their opinions to retain them for future reference. Still, legislative attempts to provide the attorney general with an office, a clerk, and supplies continually failed to win support.

The limited duties outlined for the attorney general by the First Congress, along with the lack of perquisites for the office, made it hard for presidents to attract qualified appointees and keep them in office. Even President Washington had difficulty convincing his personal attorney and long-time friend, Randolph, to take the job. Washington finally won Randolph over by pointing out that service as attorney general might enhance his earning opportunities in private practice. In fact, Randolph did not profit much from the prestige of the office during or after his tenure. Subsequent attorneys general did profit handsomely from the experience, but early officeholders often had difficulty BALANCING the dual commitments to private practice and public service.

The commitment to public service for early attorneys general was further complicated by institutional tensions between the executive, legislative, and judicial branches of government, which all claimed the officeholder's time, services, and allegiance. It has been said that the attorney general serves "three masters": the president, the Congress, and the courts (American Enterprise Institute for Public Policy Research 1968). Although the attorney general advises the president, the basic authority of the office is derived from Congress and the functions of the office are subject to congressional control. In addition, the attorney general is a member of the bar and therefore an officer of the court subject to the directives of the judicial branch.

Although the First Congress defined the relationship between the attorney general and the president, it did not define the relationship between the attorney general and Congress. And it was notably silent regarding who was ultimately to decide when and whether the interests of the United States were "concerned": nothing in the Judiciary Act of 1789 specified who should control the attorney general or to whom she or he should report. Early attorneys general took orders from the Congress as well as from the president and the heads of other executive departments. Attorneys general were often asked to deliver opinions to Congress on legislative proposals, and they came to be viewed as authorities on constitutional issues—much to the chagrin of both legislators, who frequently disagreed with their interpretations, and members of the judiciary, who assumed that they themselves were the final arbiters in constitutional matters.

The attorney general has also been said to straddle the legal and political worlds. When Congress created the executive departments, it did not specify who should or should not be members of the president's cabinet, and it could not predict the level of influence held by any one individual. In the early years, the attorney general did not have cabinet rank but served as counsel to those who did. However, as Washington's personal legal adviser, Randolph participated in cabinet meetings as early as 1792, establishing the precedent for attorneys general to have a hand in making policy as well as in interpreting and enforcing the laws. The attorney general's role in policy making soon brought into question the extent to which party lines and presidential preferences influenced his or her legal advice. Over time, some attorneys general handled the dilemma with more integrity and less partisanship than others.

The lack of centralized authority and the lack of basic institutional support for the office of the attorney general began to be remedied by Congress in the early nineteenth century. Subsequently, many of the issues caused or influenced by conflicting allegiances were dissolved or clarified through administrative policy and legislation.

In 1814, during the term of Attorney General RICHARD RUSH, President JAMES MADISON made the first move to expand formally the presence (if not the duties) of the attorney general, by proposing a requirement that the attorney general reside in or near Washington, D.C., while Congress was in session. The residency requirement had previously been resisted by some attorneys general. Although it made the officeholder available to the president and Congress when the attorney general was most needed, it also made the private practice of law more inconvenient to an attorney general who lived far from the Capitol.

Attorney General Wirt (1817–29), under Presidents JAMES MONROE and JOHN QUINCY ADAMS, was the first to comprehend fully the officeholder's need for administrative structure. During his tenure, the attorney general was finally given government office space, a transcribing clerk, and a small fund for office supplies. The practice of providing opinions to Congress was also curtailed during this period, when Wirt presented a paper to President Monroe outlining the extent of his congressional workload and his objections. Wirt told the president that opinions had been provided to Congress in the past as a courtesy—not as a MATTER OF LAW. Wirt told the president the practice would not continue unless Congress revised the law and made it mandatory.

By 1853, when CALEB CUSHING became attorney general under President FRANKLIN PIERCE, the officeholder had four clerks and—for the first time—a salary comparable to those of other cabinet officers. Also in 1853, Cushing decided it was no longer appropriate to continue the private practice of law while in office. He was the nation's first full-time attorney general.

Recommendations that a department of law be created by Congress were discussed as early as 1830 and were championed by numerous presidents and attorneys general. A department of justice was first suggested in 1851 by Alex H. H. Stuart, secretary of the newly established DEPARTMENT OF THE INTERIOR.

No action was taken by Congress until February 25, 1870, when the Joint Committee on Retrenchments (appointed to find ways of reducing government expenditures) drafted a bill to consolidate legal functions and create a department of justice. The bill was made into law four months later, and the Justice Department officially came into existence on July 1, 1870 (An Act to Establish the Department of Justice, §17, 16 Stat. 162 [June 22, 1870]).

The June 22, 1870, law created a new position, that of SOLICITOR GENERAL, whose holder is in charge of representing the government in suits and appeals in the Supreme Court and in lower federal trial and appellate courts, in cases involving the interests of the United States. The law also provided for two assistant attorneys general. It gave the attorney general complete direction and control of the U.S. attorneys and all other counsel employed on behalf of the United States. And it finally gave the attorney general supervisory powers over the accounts of district attorneys, marshals, clerks, and other officers of the court involved in federal matters.

The first attorney general to head the new department was AMOS T.  AKERMAN, of Georgia, appointed by President ULYSSES S. GRANT in 1870. So, 81 years after the creation of the office of the attorney general, the nation finally had a full-fledged organization to administer and enforce its laws. Evolution in the position of attorney general culminated in the formation of the Justice Department.

In the late twentieth and early twenty-first centuries, U.S. attorneys general, including JANET RENO and JOHN DAVID ASHCROFT, have been at the center of extensive media attention. Reno, for example, was the subject of intense scrutiny for her role in the deaths of about 80 members of the Branch Davidians, an armed religious sect, near Waco, Texas in 1993. The deaths occurred when the FEDERAL BUREAU OF INVESTIGATION, following a long standoff, set fire to the group's compound during an attempted raid. Reno later took responsibility for the FBI actions. Subsequently, Reno was involved in the return to Cuba of a refugee child named Elian Gonzalez in April 2000. Reno ordered officers of the Immigration and Naturalization Service to raid the home of the child's relatives in Miami in order to return the child to his father, who remained in Cuba. Ashcroft, a former U.S. senator and governor of Missouri, was at the center of attention throughout the investigation of terrorists following the SEPTEMBER 11TH ATTACKS on the United States.

The growth of the office of the attorney general from a part-time, one-person operation into a vast and complex law enforcement organization is an inseparable part of the story of the United States and the development of its institutions. As the role of government has expanded, so too has the role of the nation's attorney general. Moreover, though the attorney general's role continues to grow and evolve, the basic duties of the office and the structure of its supporting organization have been in place since the Civil War.