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Keywords

attorney general; Department of Justice; legal ethics; professional responsibility; cronyism; political appointments

Abstract

Historically, the office of the U.S. Attorney General has been identified as “quasi-judicial” or having “quasi-judicial” aspects. Other parts of the Department of Justice (DOJ) have also been described as quasi-judicial, such as the Office of Legal Counsel and the Solicitor General. A glance at a list of past attorneys general seems to confirm this judicial aspiration in practice. Nine attorneys general became U.S. Supreme Court justices, and others were notably judicious and professional in their tenure in the office. Of course, there are some infamous examples of unprofessional cronyism—the appointment of friends or associates to positions of authority, without properly considering their qualifications—but there are famous counterexamples of those who stood up to the presidents they served in defense of legal principles. The “insider” friend, fixer, or brother of the president was presumably the exception. But a closer examination of the history of the Office of the Attorney General reveals a surprising pattern: the nineteenth century had relatively few crony-ist appointments in an era known for patronage, but the twentieth century ushered in more partisan insiders, hacks, and fixers, just as the DOJ’s power grew enormously. This shift was remarkably bipartisan, starting under President Woodrow Wilson, a Democrat, and then continuing immediately after under President Warren G. Harding, a Republican. Perhaps this turn in the late 1910s started an era of partisan escalation as each political party pushed the norms as they rotated into power. This Article suggests that these trends have contributed to making the DOJ partisan and allowing some presidents to imagine the Attorney General as the president’s personal lawyer and fixer. In just over half of the past century, the Office of the Attorney General has been filled by a partisan insider.

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