Above The Law #1.1


The grand pooh-bah of this incredible mlange of investigative, prosecutive, policy-making and advisory powers, at least according to the official organizational charts, is the attorney general of the United States. As I write, the position is held by a Harvard-trained Miami lawyer named Janet Reno. Like every one of the seventy-six men who preceded her, Reno was appointed by the president, confirmed by the Senate and serves as a member of the cabinet.

In many other ways, however, Attorney General Reno is an oddity. Unlike the men George Washington and Ronald Reagan selected as their first attorneys general, for example, Reno did not come to President Bill Clintons attention because she had previously been his personal lawyer, the one responsible for protecting the family fortune. That, of course, was the most significant characteristic of Washingtons Edmund Randolph and Reagans William French Smith.

Reno also had never been the head of the Democratic Party in her state, the national chairman of her presidents political party or her presidents campaign manager, nor was she an obvious candidate for high elective office herself, all attributes of a surprisingly large number of attorneys general.

It was Levi Lincoln, a Massachusetts lawyer President Thomas Jefferson selected to be attorney general in 1801, who was the first out-and-out political leader to hold the job. Many others followed. President Woodrow Wilsons best-remembered attorney general, A. Mitchell Palmer, was an influential Pennsylvania Democrat, a former member of the Democratic National Committee, former senior member of the House of Representatives and a leading candidate to be the Democratic Partys next nominee for president at the time of his appointment. Warren Hardings attorney general, Harry M. Daugherty, arguably the biggest crook ever to hold the office, had been Hardings campaign manager before his appointment. Franklin Roosevelts first attorney general, Homer S. Cummings, was a Connecticut politician who previously had headed the Democratic National Committee. Two of Trumans attorneys general, J. Howard McGrath and J. P. McGranery, were cut from the same cloth. Herbert Brownell, Jr., Eisenh owers first attorney general, was a New York politician who directed Deweys two failed attempts to become president but hit the jackpot as Ikes de facto campaign manager. Robert Kennedy and John N. Mitchell were the campaign directors and senior political strategists for the men who appointed them, John Kennedy and Richard Nixon. The man Nixon chose as attorney general when Mitchell stepped down to direct Nixons ill-fated second campaign was Richard G. Kleindienst. Kleindiensts achievements included a year or so as the 1968 director of field operations for Nixons campaign committee and as the general counsel of the Republican National Committee and as the general counsel of the Republican National Committee and, before that, a stint with the presidential campaign organization of Barry Goldwater. Griffin B. Bell, an experienced corporate lawyer, was the chairman of JFKs campaign in Georgia, a federal judge and a family friend before Jimmy Carter selected him to be attorney ge neral. Edwin Meese III, Reagans second attorney general, got his start in public life as a hard-charging local prosecutor during the turbulent free speech disputes at the University of California at Berkeley. He then became a leading conservative figure, first as an assistant to Governor Reagan in Sacramento and then to President Reagan in Washington.

It is hard to overstate the casually cynical way so many presidents have gone about the job of selecting their attorneys general. One interesting example of how little presidential concern is generally invested in assuring the quality of the person often called the nations number one law enforcement officer involved Franklin Roosevelt.

Shortly before New Years Day of 1939, FDR asked Robert H. Jackson to join him for lunch at the White House. Jackson, a distinguished and competent lawyer then serving as the solicitor general, was the obvious candidate to replace Homer Cummings, FDRs first attorney general, who had recently announced his plans to retire after six years in office.

During the lunch, Jackson later recalled, Roosevelt told him that he truly was the person he wanted to nominate as attorney general. But heres my problem. Frank Murphy has been beaten for governor of Michigan. Frank hasnt got one nickel to rub against another. Hes got to have a job on the federal payroll. Having been governor of Michigan, and having been in the Philippines as high commissioner, I cant offer him anything less than a cabinet position. Its the only vacancy Ive got. I dont think Frank ought to be attorney general. It isnt his forte, but temporarily I dont know of anything to do but appoint him and take care of him.

Jackson later wrote that he told FDR he understood the presidents dilemma and would be willing to stay on as solicitor general. So, early in 1940, Frank Murphy became attorney general, a position he held until FDR found him another job about a year later, when Jackson took on the overall command of the Justice Department.

In backhanded ways, even the Justice Department sometimes has obliquely acknowledged the seedy character of several of its maximum leaders. Consider, for example, the two long rows of portraits that hang along the echoing hallway outside the spacious fifth-floor office of the attorney general. These are the attorneys general of the United States. A few faces, however, are missing in action. The mystery of their abduction was solved a few years ago when an enterprising Washington Post reporter noticed The Hall of Shame, a short hallway located in a seldom visited area on the buildings seventh floor. Hanging there in not-so-splendid obscurity were John Mitchell, Richard Kleindienst, Harry Daugherty and Ramsey Clark. The first three, of course, were perfectly understandable. They had all been charged with committing criminal acts while in office.

But why Clark? Although he had indeed been viewed as an outspoken liberal while serving as Lyndon Johnsons attorney general, did the profoundly conservative civil servants of the Justice Department really think liberalism was a sufficiently serious offense to warrant Clarks exile? Maybe not. His crime, it seems, was an artistic one. Apparently, Clark had been banished to the seventh floor because of his decision to hire an artist who had painted his official portrait in a mildly unorthodox impressionistic style. (Edwin Meese, one of Ronald Reagans more controversial attorneys general, had not been banished to the seventh floor despite his having been investigated by three special prosecutors and the conclusion of one of them that he had violated a number of criminal statutes. Meese, it should be recalled, was never actually indicted.)

The involvement of so many attorneys general in the rough and tumble of national politics is not, by itself, improper. And the performance of distinguished attorneys general like Theodore Roosevelts Charles J. Bonaparte, Franklin Roosevelts Francis Biddle and Jerry Fords Edward H. Levi proves that even with its built-in conflicts, the job can be handled in an honorable fashion. But the powerful intensity and nonstop nature of the political connections makes it reasonable to ask how frequently self-serving partisan considerations come into play at the Justice Department, the extent to which improper considerations have influenced law enforcement actionswho gets investigated and who gets chargedand the advice given to a succession of presidents on sensitive policy issues.

Given the fact that so many attorneys general actually have directed the political campaigns of the men who appointed them, it is hardly surprising that some enforcement actions are judged in political, sometimes partisan, terms. While such considerations are difficult to prove and almost always denied, concrete evidence of such calculations does exist. During an examination of Attorney General Robert Kennedys Justice Department papers at the Kennedy Library in Boston, for example, I found copies of political polls conducted by Louis Harris, Oliver Quayle and several other pollsters in 1961, 1962 and 1963. One of the polls sought to assess the views of Democratic voters in Maryland, including how they felt about Negro Opportunity in Maryland, Negro Equality in U.S., Presidents Civil Rights Program and the conflicting rights of property owners and Negroes in public accommodation disputes.

This particular poll, which Attorney General Kennedy probably had before him in late 1963 as he was making enforcement decisions regarding the nations civil rights laws, carried an unsigned handwritten notation that Joseph Tydingsa liberal Maryland senator of the dayis anxious to keep this confidential.

A key point of representative democracy at the federal level, of course, is to make the government, including the Justice Department, responsive to the will of a majority of the voters that elected the president. It remains unsettling, however, to know that Kennedythe chief law enforcement officer of the United Stateswas scanning the latest political polls while deciding how the department would handle various civil rights challenges. Was the attorney general making his decisions on the basis of his assessment of the legal issues or because the polls showed that 44 percent of the Democratic voters felt Negroes should be given a better opportunity to participate in American life; 37 percent said there should be no change; 12 percent were unsure and 7 percent said they should have less opportunity?

The concern about the extent to which improper political considerations manifest themselves within the Justice Department is reinforced by the curious fact that the department employs far more political appointees, in relation to its size, than do nine other major civilians agencies of the federal government. Considered together, for example, the agencies within the Justice Department have eleven times more political appointees at the managerial level than the Veterans Administration, four times more than Treasury and three times more than Health and Human Services.

The relatively high-profile position of the politicos in the department does not fully demonstrate just how political the agency has been at various times in its history. Consider, for example, that up until the end of World War II every individual FBI agent served at the pleasure of J. Edgar Hoover. This meant that during the first years of the bureau agents who displeased the director for any reason at all were subject to summary dismissal. Such dismissals, of course, tended to reduce the likelihood of agency whistle-blowers challenging the bureau regarding its partisan or otherwise improper activities. While this unique power has been gradually reduced by such chances as the special rights granted to returning veterans, agents have always been subject to frequent transfers, some of them punitive in nature. To this day the considerable authority of the FBI contrasts with the situation at the IRS, where the tax agencys criminal investigators are represented by a union and enjoy normal civil service protections.

Yet another factor contributing to the blatantly partisan cast of many department decisions is the process by which U.S. attorneysthe senior federal law enforcement official in each of the ninety-three districtsget their jobs. According to the Constitution, U.S. attorneys are appointed by the president with the advice and consent of the Senate. In fact, as will be explored in greater detail in a later chapter, it is the other way around. Almost always, U.S. attorneys are selected by the senator or other senior elected official in each state who belongs to the party in control of the White House, and that candidate is then confirmed by the president. This means that the federal prosecutor in each district is usually more responsive to the focused political needs of the appointing senator than to the orders of the attorney general.

Americans, of course, like to believe that law enforcement decisions are made by television-land law enforcement professionals, not political operatives. Throughout the long history of the Justice Department, however, most U.S. attorneys and attorneys general have either been young lawyers who see these attention-gathering jobs as the perfect springboard to higher political office, or older men who are buddies of the president. Recent examples of the former are Rudolph Giuliani in New York, James Thompson in Illinois, William F. Weld in Massachusetts and Richard Thornburgh in Pennsylvania. When it comes to the challenging job of running the Justice Department, professional competence has seldom been a concern of either party.

David Burnham

iAutoblog the premier autoblogger software

This is


Post a Comment

All comments and feedback appreciated!

Criminology & Justice Headline Animator


Law Books




Serial Killers



Related Posts Plugin for WordPress, Blogger...