The Office of the Attorney General was established in 1789 as part of The Judiciary Act of 1789. The Act, among other things, established the makeup of the Supreme Court and its exclusive jurisdiction and also the lower court structure. One of the powers the Act gave to the Supreme Court, writs of mandamus, was the subject of the famous Supreme Court case, Marbury v. Madison. The Judiciary Act of 1789 also established the Office of the Attorney General.
Given recent actions of the current Attorney General, William Barr, as well as the inherent conflicts we have seen in past administrations, we must revisit the independence of the Office of the Attorney General and its location within the executive branch.
The states’ model for an independent Attorney General is a good one to replicate, and would return the position to what the Founding Fathers intended. An Attorney General beholden to the President in any Administration is a recipe for partisanship and protecting the President instead of acting as an independent law enforcement official ensuring the laws are faithfully executed.
The Judiciary Act of 1789
As noted, the Act established the Office of the Attorney General. Specifically, Section 35 of the Act provides:
And there shall also be appointed a meet person, learned in the law, to act as attorney-general for the United States, who shall be sworn or affirmed to a faithful execution of his office, whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to 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 . . . .
However, the original drafts of the Act contemplated that the Supreme Court would appoint the Attorney General, as noted by Charles Warren in his Harvard Law Review article, New Light on the History of the Federal Judiciary Act of 1789.
The language that eventually emerged in Section 35 was not definitive on the President appointing the Attorney General; rather, it was silent. As history writer David Tollen wrote on the site, Pints of History:
The Framers of the Constitution did not consciously grant the President authority to hire and fire the Attorney General. . . . [T]he first drafts of the Judiciary Act of 1789, written by several of the Framers, said the Supreme Court would appoint the Attorney General. The act’s final draft, on the other hand, said nothing about who would hire or fire these lawyers.
The early Presidents just stepped into the void and made government attorneys part of their administrations.
There is no reason that the office needs to remain as part of the United States executive branch.
States as Potential Models
As Tollen noted, “
Forty-eight of our state governors cannot fire their AG at will, so they can’t avoid justice through control of state prosecutors.” Forty-three states elect their attorney generals.
A typical format is found in Illinois. The position is created pursuant to the state constitution, currently at Article V, Section 1 of the 1970 Illinois Constitution. The original Illinois Constitution, adopted in 1818, “authorized the General Assembly to appoint an Attorney General and to regulate his duties by law.” The Illinois Attorney General role was “[a]dapted constitutionally and legislatively over the years to meet the needs of a growing State.” But whether appointed or elected, the Illinois Attorney General has always been independent from, and not beholden to, the Illinois Governor.