Justice Department’s founding was complicated

OPINION:

If you think the Department of Justice is grabbing the headlines these days, on June 22, 1870, the news was even bigger. Congress seemingly remedied the federal government’s legal shortcomings that day when it created the department. To be sure, there had always been an attorney general since 1789, the first year of President George Washington’s administration when the Judiciary Act was passed. But the officeholder was always a part-timer.

The first attorney general, Edmund Randolph, was a close personal friend of Washington and continued his private law practice as well. He lamented:

“I am a sort of mongrel between the State and the U.S.; called an officer of some rank under the latter, and yet thrust out to get a livelihood in the former — perhaps in a petty mayor’s or county court … Could I have foreseen it, [the role] would have kept me at home to encounter pecuniary difficulties there, rather than add to them here.”

Randolph’s main job was to provide legal advice to the president as well as Congress and to deal with turf wars among Cabinet members, especially Secretary of State Thomas Jefferson and Secretary of the Treasury Alexander Hamilton.

But the dilemma in terms of the office was its lack of administrative authority. In 1819, for instance, the attorney general provided advice just to Congress — with the president left out of the loop — and federal district attorneys were really under the control of the Treasury Department, which used them in roles akin to IRS agents today, namely, collecting money. Even the office of the attorney general was lodged in the Treasury Department. And sometimes the real legal maneuvering was done not by the attorney general, but by the powerful secretary of Treasury, as in 1830, when efforts, largely unsuccessful, were made to eliminate discord between the White House and Treasury. And muddying the waters even more, each federal department had its own lawyers.

Even when the federal government moved from Philadelphia to Washington in 1800, the attorney general was not required to live in the city, nor given an office or funds had he chosen to do so. Congress tried in 1830 and again in 1864 to get a full-time attorney general, but both efforts failed. Complications also arose when the Department of Interior was created in 1849 because federal district attorneys found a home there, albeit an inappropriate one.

The Civil War did much to bring about the act creating the Department of Justice. For one reason, the Confederacy set forth a modern Department of Justice headed by an attorney general who was a member of the Cabinet and with powers sufficient to deal with critical issues. Second, the administration of President Abraham Lincoln was faced with so many legal issues that significant sums of money were spent on outside attorneys that, in the view of Congress by the end of the 1860s, had not succeeded in resolving legal problems.

And by 1870, in the heat of Reconstruction of the South after the Civil War, President Ulysses S. Grant led efforts to deal with rising crime, especially in the form of the Ku Klux Klan.

The final legislation not only provided for a full-time attorney general, but gave the office authority over federal district attorneys that were moved from Interior to the department. Moreover, the act created a second post, solicitor general, to deal with litigation before the Supreme Court and, in the absence of the attorney general, to lead the department.

But as with so many pieces of federal laws, junk responsibilities were heaped on the Justice Department, as illustrated by the following:

“That the duties enjoined upon the auditor of the Post-Office Department by the fourteenth section of the act entitled ’An act to change the organization of the Post-Office Department, and to provide more effectually for the settlement of accounts thereof,’ passed July two, eighteen hundred and thirty-six, shall hereby be performed by some office of the Department of Justice.”

In retrospect, however, the law creating the Department of Justice was really a cost-cutter of sorts, eliminating about a third of the private attorneys that handled work for the federal government and not replacing them with a staff that was large enough to go after the bad guys, in particular, the Klan. In the pre-DOJ years from 1864 to 1869, for example, some $800,000 was spent for private lawyers. In the years after 1870, the department spent a tiny fraction of that sum for its own staff and was prohibited from using outside counsel.

Worse, the Department of Justice had no permanent home. It wasn’t until 1935 that it got a building of its own.

• Thomas V. DiBacco is professor emeritus at American University.