D.C. Law

President Clinton came into office determined to give his cabinet a new look of diversity, and this apparently meant naming a woman as Attorney General. It took him three tries to achieve the goal, but he has done so with Janet Reno, and it is a bold historical stroke. Unlike the junior cabinet posts in the “human services” areas occasionally held by women since 1933, when Frances Perkins became Secretary of Labor, the Department of Justice is long-established and powerful. Giving it a female boss is a major breakthrough. At the same time, in a pattern that seems characteristic of Clinton, he sent a conciliatory message to traditionalists: Reno, a prosecutor in a high-crime Florida county at the time of her appointment, was known as a tough and courtroom-tested law-enforcement official, and not as a feminist—or any other kind of revolutionary.

Still, I tried to imagine, when I heard the news, the stunned reaction of the very first holder of the job, Edmund Randolph, had he lived to see the day. But perhaps he would not have been terribly shocked; he was a man of strong and not always predictable views. As a Virginia delegate to the Federal Convention, he worked long and hard on the Constitution. Then, he refused to sign it in its final form, yet later he reversed himself by agreeing to serve in the new government after all.

I checked Randolph’s record and that of all the 76 Attorneys General who followed him to see what kind of role model Reno might adopt, and I found such stunning variety as to convince me that, no matter what she does, she will have plenty of precedent to draw on. We have had distinguished legal scholars and party hacks, workaholics and clock punchers, men of integrity and men with principles of taffy. One held a unique pedigree: He was Charles J. Bonaparte, grand-nephew of the emperor Napoleon. At least one, Eliot Richardson, quit rather than follow a presidential order (he would not fire Archibald Cox at Nixon’s bidding) while another (Roger B. Taney) took the job specifically to carry out Andrew Jackson’s command (in defiance of Congress) to remove federal deposits from the Bank of the United States. But Taney was no sycophant; he was convinced that Jackson was right. Some Attorneys General have bent the law, especially in the direction of generosity toward friends and benefactors of their party and their president. Only one has gone to jail, and that one not for venality (it was John Mitchell, for Watergate). But there have been some close calls.

The rules of the job had to be made up extempore from the beginning, as the position was not very well defined. Congress, in the Judiciary Act of 1789, merely called for the choice of a “meet” —that is, fitting—”person, learned in the law, to act as attorney general for the United States.” Randolph certainly filled the bill. He had held the same office in Virginia, and he was George Washington’s close friend and attorney. So much for the charge that only recent presidents (for example, Jimmy Carter and Ronald Reagan) have named their own lawyers to the job. What is more, Washington overcame Randolph’s reluctance to accept the appointment by noting that it would “confer pre-eminence” on him and give him a “decided preference of professional employment.” Randolph took the bait and the post and continued his private practice, without embarrassment or reproach.

So did all his successors until 1853, and with good reason. The duties of office were limited and imprecise at best—merely to conduct suits in which the United States was “concerned” and to give advice on questions of law to the president and the department heads. So there was time for earning outside income, and a definite need as well. The pay was small, $1500 a year at first, grudgingly raised by Congress in small increments—five over the first 60 years. No money for office rent or expenses; Randolph had to dig into his own pocket. A clerk wasn’t provided until 1819, perhaps because of the protests of then-Attorney General William Wirt, who had taken office two years earlier and found that literally no records whatever had been kept to guide new appointees.

So did all his successors until 1853, and with good reason. The duties of office were limited and imprecise at best—merely to conduct suits in which the United States was “concerned” and to give advice on questions of law to the president and the department heads. So there was time for earning outside income, and a definite need as well. The pay was small, $1500 a year at first, grudgingly raised by Congress in small increments—five over the first 60 years. No money for office rent or expenses; Randolph had to dig into his own pocket. A clerk wasn’t provided until 1819, perhaps because of the protests of then-Attorney General William Wirt, who had taken office two years earlier and found that literally no records whatever had been kept to guide new appointees.

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 Anti-trust 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 12 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 clean-up, 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.

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 General's office 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.

At all events, the past has few clear-cut lessons to teach Attorney General Reno as she takes over the department, now grown to some four thousand lawyers in Washington and a swarming nationwide support staff. Before bureaucratic and political battles engulf her, however, I hope she takes note of the inscription over the door of her new office: “The United States wins its case whenever justice is done one of its citizens in the courts.” Whoever said it, it’s a wonderful definition of victory for a newcomer to pursue.