Last week in a Washington Post op-ed, Eric Holder — former attorney general under President Barack Obama — called William P. Barr unfit to hold his office. Barr had delivered a controversial speech to the Federalist Society that included much-criticized comments about policing. But Holder argued with a less noticed part of the speech: Barr’s embrace of the so-called unitary executive theory. As Holder writes:
Barr has long held this view of presidential authority. Under this theory, the president has blanket authority to control the work carried out by federal law enforcement officials — because the framers vested executive branch authority entirely in him.
What the framers thought
The unitary executive theory remains deeply controversial among scholars. But whatever the Constitution’s framers may have thought about it, they would have rejected its application to the attorney general.
My research on the history of the office suggests that the framers considered it a quasi-judicial post, independent from the president. Congress originally established the office with the Judiciary Act of 1789, the act creating the federal court system — not the acts establishing executive departments. As originally drafted, attorneys general were to be appointed by the Supreme Court, not the president. Before passing the bill, Congress changed that to presidential nomination and Senate confirmation, undoubtedly so that the AG would be appointed in the same way as federal judges — not as a statement of the office’s constitutional status.
When George Washington appointed the nation’s first AG in 1789, Thomas Jefferson in correspondence declared him “the Attorney General for the Supreme Court.” Early AGs shared offices with the court; their budgets were line items under the federal judiciary, not the executive; and at first, the AG was not in line to succeed to the presidency. The office’s heaviest responsibility was providing Congress with judicial-style opinions about whether proposed legislation would be constitutional.
Early AGs saw their role as different from those of other Cabinet officers, requiring judicial impartiality. William Wirt, appointed by President James Monroe in 1817, wrote that his duties were confined to “questions of law” and had “nothing to do with the settlement of facts” or policy. Caleb Cushing, appointed by President Franklin Pierce in 1853, wrote that his job was to act “judicially, under all the solemn responsibility of conscience and of legal obligation.” Edward Bates, President Abraham Lincoln’s AG, said, “The office I hold is not properly political, but strictly legal.”
From quasi-judicial to executive branch
As presidents became active policymakers, they increasingly sought AGs who shared their political views. Andrew Jackson was the first to fire an AG over a policy dispute — but that controversial action was one of the reasons Congress censured Jackson.
When Cushing wrote an influential opinion about the nature of the office in 1854, he commented on how it had evolved. Though it continued to perform “quasi-judicial duties,” Cushing said, “a sense of subordination had come to exist … with regard to the directory power of the President.” Without congressional statutes to the contrary, he wrote, the AG should normally answer to the president, whose duty it was to faithfully execute the laws. In 1870, Congress codified this approach in the Department of Justice Act, making the AG the head of an executive department and placing it in line to succeed the president.
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A position with conflicting loyalties
But the 1870 law did not end debates over the AG’s independence. AGs were still expected to remain above partisanship and to eschew improper political pressures, from the White House or elsewhere.
According to political historian Nancy Baker, the office’s “conflicting loyalties” required attorneys general to balance their obligation to the law and professional norms, on the one hand, with their obligations to the president and a partisan administration, on the other. If that tension became too great, the AG could resign — as did Elliot Richardson during the Watergate scandal in the early 1970s.
In its 1974 decision United States v. Nixon, the Supreme Court squarely rejected the unitary executive theory as applied to the Department of Justice. In that case, Leon Jaworski, a Justice Department special prosecutor, sought to enforce a subpoena for tapes and other documents held by the president. Nixon’s lawyers argued that the court should dismiss the case as an intra-branch dispute — a subordinate inappropriately trying to exercise the president’s constitutional authority against the president. A unanimous court disagreed and heard the case anyway, eventually deciding against Nixon’s claim of nearly unbounded executive privilege.
After Watergate, Congress considered legislation to make the AG’s office and the Justice Department into an independent agency, buffered from the president’s political control. Though it did not go that far, it adopted a more modest reform when it passed the 1978 independent counsel statute, which protected a category of DOJ prosecutions from presidential control. That statute was upheld by the court in an 8-to-1 opinion written by Chief Justice William Rehnquist in Morrison vs. Olson (1988). Although Congress did not reauthorize the independent counsel law in 1999, Nixon and Morrison remain controlling legal precedents, upholding Congress’s ability protect federal law enforcement authority from presidential control.
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Why the history is important
This history should illuminate the Holder/Barr dispute, and it should bolster Congress if it wishes to limit political influence over the Justice Department. Such reforms could aim at protecting federal investigations and prosecutorial decision-making from presidential control, or at strengthening the inspector general’s independence as the DOJ’s internal watchdog. Or when the Senate confirms attorneys general in the future, it may wish to reinforce norms of independence and insist the DOJ operate on a proper remove from political influence. This history reveals that Congress has the constitutional latitude to shape how the Justice Department operates.
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Cornell W. Clayton is the Thomas S. Foley Distinguished Professor of Government at Washington State University and author of “The Politics of Justice: The Attorney General and the Making of Legal Policy” (M.E. Sharpe, 1992).