Justice Department

The position of attorney general has its roots in medieval ENGLISH LAW. The title attorney general can be traced to 1398, when the Duke of Norfolk employed attorneys general to witness his BANISHMENT. In the years following, the king or queen and other nobles employed attorneys to appear in court on their behalf. In time, the office of the king's or queen's attorney became a privileged and powerful position. The attorney general, as the position was called after 1461, became an important political and legal adviser, first to the monarch and later to the House of Commons and the government in general.

When English settlers established colonies in America, they included the office of attorney general in the colonial governments they created. Virginia was the first colony to appoint an attorney general, in 1643, followed by Rhode Island in 1650, and Maryland in 1660. By the end of the seventeenth century, most of the colonies had their own attorneys general. By 1776, a fairly consistent system of courts and law officers had been established in the colonies. With the American Revolution, British officeholders were simply replaced with Americans.

When the Constitution was written in 1789, the Framers did not specifically designate an office of attorney general, instead leaving such administrative details to be determined by statute. The attorney general was created by the JUDICIARY ACT OF 1789, which specified that the office should be filled by "a meet person, learned in the law," who would "prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and … 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." The act gave the attorney general limited powers and resources, including no provisions for staffing or office expenses. The person filling the office was expected to pay for such items. Because the position of attorney general was originally meant to be a part-time position, the salary was set at just $1,500 per year, and the officeholder was expected to maintain a private legal practice.

The first person to fill the position of attorney general was EDMUND RANDOLPH, of Virginia, who was George Washington's personal attorney. Although the attorney general initially was not a member of the president's cabinet, Washington valued Randolph's advice so much that he asked Randolph to sit in on his cabinet meetings. Ever since then, the position of the attorney general has been recognized as a cabinet post.

In addition to the office of attorney general, the Judiciary Act of 1789 established the U.S. district attorneys (now called U.S. attorneys) and the U.S. marshals, who represented the federal government in court and enforced federal laws, respectively, at the state and local levels. Although these officials were statutorily under the supervision of the president, they actually operated with very few checks. To make the government's legal work more controllable and consistent, Attorney General Randolph attempted to bring the U.S. attorneys and marshals under his supervision, arguing that such centralization would help him to secure the government's legal interests. However, the legislation that Randolph recommended failed in Congress.

This division of the government's legal work—among the attorney general, the district attorneys and marshals, and also solicitors hired by individual executive departments—resulted in uncoordinated, inconsistent, and inefficient legal service to the federal government. Presidents and attorneys general made several attempts to centralize the government's legal services, but Congress was leery of giving the executive branch more power and therefore did not pass the necessary legislation.

In the early nineteenth century, the office of the attorney general expanded slowly. The workload was light, and until 1814 the attorney general was not required to reside in Washington, D.C., except when the U.S. Supreme Court was in session. Significant changes were made, however, when WILLIAM WIRT, attorney general under President JAMES MONROE, took over the office in 1817. Finding that previous attorneys general had kept no records of their work, Wirt established a formal system for recording his official actions and decisions so that future attorneys general would have a record of precedents to follow. Wirt also expanded the duties of the office and created formal operating procedures, greatly increasing his workload. Congress compensated Wirt for his efforts, increasing his salary to $3,500 and providing a clerk and office expenses. These funds, however, were one-time appropriations only; not until 1831 did Congress begin making regular appropriations for office expenses and book purchases.

The next attorney general to make significant changes in the office was CALEB CUSHING, who was appointed attorney general by President FRANKLIN PIERCE in 1853. Unlike his predecessors, Cushing left his own private legal practice and transformed the office of attorney general into a full-time position. Cushing expanded the work performed by the department and was also given additional responsibilities by Congress, including advising treaty commissioners, examining government land titles, administering government PATENTS, and compiling and publishing federal laws. To enable Cushing to complete this work, Congress in 1859 authorized the appointment of an assistant attorney general, who was given control of the U.S. district attorneys. Congress also raised the attorney general's salary to $6,000, finally making it equal to the salaries of other cabinet members.

With the onset of the Civil War, the government's need for legal services and representation increased drastically. All across the country, claimants were filing suits in cases involving issues such as property titles and personal rights. The attorney general's office did not have the resources to handle these cases, nor did it have adequate authority over the district attorneys in the states. The various executive departments were forced to hire outside counsel to represent the government, resulting in enormous costs—nearly $500,000 over four years. These totals came to the attention of Congress, which was trying to curb expenses in the aftermath of the war. To try to economize on the government's legal bills, Congress passed the Judicial Act of 1870, which created the DOJ. The staff was increased by two assistants and a solicitor general, who was to share the attorney general's task of representing the federal government before the U.S. Supreme Court. The act also gave the attorney general positive authority over the U.S. district attorneys and marshals. Although the creation of the DOJ did not materially change the duties of the attorney general, it significantly changed the nature of the job by making it an administrative position that is responsible for an official bureaucracy.

Even with the creation of the DOJ, the federal government's legal work suffered from a lack of coordination because individual executive departments continued to retain their own solicitors. These solicitors provided legal advice to their departments and claimed the right to represent the departments in court. The conflicts and confusion that were created between the departments and the DOJ came to a head during the first world war, when many new federal government agencies and departments were created, each claiming the right to conduct its own legal work. In response, President WOODROW WILSON issued an EXECUTIVE ORDER (Exec. Order No. 2877 [1918]) requiring all government law officers to operate under the supervision of the DOJ. By the 1920s, administrative chaos returned as individual departments again tried to conduct their own legal work. In 1933, President FRANKLIN D. ROOSEVELT issued another executive order (Exec. Order No. 6166 [1933]) consolidating all the government's legal work under the DOJ and the attorney general.

The September 11, 2001 terrorist attacks on the United States led to substantive and organizational changes for the DOJ. The USA PATRIOT ACT ("Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism"), passed by Congress in October 2001, granted the attorney general more surveillance powers with less judicial supervision. However, these powers will sunset in four years. The act also gave the attorney general more power to detain and deport non-citizens, with little or no JUDICIAL REVIEW.

At an organizational level the DOJ surrendered its control of immigration and naturalization when Congress established in late 2002 the HOMELAND SECURITY DEPARTMENT. The Immigration and Naturalization Service (INS) had been subjected to withering criticism for its failure to monitor the September 11 hijackers and for its inability to modernize its management system. As a result, the functions of the INS were transferred to the Border and Transportation Security division of the new cabinet-level department.

Many units of the federal government continue to employ their own legal counsel, but such attorneys generally are restricted to rendering legal advice to that department alone and are not permitted to represent the government in court. Tensions sometimes arise when an executive department and the DOJ take contrary positions on an issue in litigation. When that happens, the attorney general and the solicitor general must decide which department's stand will be taken.