WHO’S IN CHARGE HERE?

The grand pooh-bah of this incredible mélange 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 Clinton’s 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 Washington’s Edmund Randolph and Reagan’s William French Smith.

Reno also had never been the head of the Democratic Party in her state, the national chairman of her president’s political party or her president’s 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 Wilson’s 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 Party’s next nominee for president at the time of his appointment. Warren Harding’s attorney general, Harry M. Daugherty, arguably the biggest crook ever to hold the office, had been Harding’s campaign manager before his appointment. Franklin Roosevelt’s first attorney general, Homer S. Cummings, was a Connecticut politician who previously had headed the Democratic National Committee. Two of Truman’s attorneys general, J. Howard McGrath and J. P. McGranery, were cut from the same cloth. Herbert Brownell, Jr., Eisenhower’s first attorney general, was a New York politician who directed Dewey’s two failed attempts to become president but hit the jackpot as Ike’s 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 Nixon’s ill-fated second campaign was Richard G. Kleindienst. Kleindienst’s achievements included a year or so as the 1968 director of field operations for Nixon’s 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 JFK’s campaign in Georgia, a federal judge and a family friend before Jimmy Carter selected him to be attorney general. Edwin Meese III, Reagan’s 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 nation’s number one law enforcement officer” involved Franklin Roosevelt.

Shortly before New Year’s 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, FDR’s 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 here’s my problem. Frank Murphy has been beaten for governor of Michigan. Frank hasn’t got one nickel to rub against another. He’s got to have a job on the federal payroll. Having been governor of Michigan, and having been in the Philippines as high commissioner, I can’t offer him anything less than a cabinet position. It’s the only vacancy I’ve got. I don’t think Frank ought to be attorney general. It isn’t his forte, but temporarily I don’t know of anything to do but appoint him and take care of him.”

Jackson later wrote that he told FDR he understood the president’s 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 building’s 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 Johnson’s attorney general, did the profoundly conservative civil servants of the Justice Department really think liberalism was a sufficiently serious offense to warrant Clark’s 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 Reagan’s 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 Roosevelt’s Charles J. Bonaparte, Franklin Roosevelt’s Francis Biddle and Jerry Ford’s 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 actions—who gets investigated and who gets charged—and 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 Kennedy’s 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.,” “President’s 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 nation’s civil rights laws, carried an unsigned handwritten notation that Joseph Tydings—a liberal Maryland senator of the day—“is 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 Kennedy—the chief law enforcement officer of the United States—was 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 agency’s 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. attorneys—the senior federal law enforcement official in each of the ninety-three districts—get 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

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