Professional independence in the office of the attorney general

Stanford Law Review

Volumn 60, Issue 6, 2008, Pages 1931-1979

  Spaulding, Norman W ^a  

^a STANFORD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 49249103855     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (351)

1. On the shift in DOJ priorities, see Dan Eggen & John Solomon, Justice Dept.'s Focus Has Shifted; Terror, Immigration Are Current Priorities, WASH. POST, Oct. 17, 2007, at A1.
2. On cronyism, see Dan Eggen, Deputy Attorney General Defends Prosecutor Firings, WASH. POST, Feb. 7, 2007, at A3;
3. David Johnston et al., A New Mystery to Prosecutors: Their Lost Jobs, N.Y. TIMES, Mar. 4, 2007, § 1, at 1;
4. David Johnston, Justice Dept. Names New Prosecutors, Forcing Some Out, N.Y. TIMES, Jan. 17, 2007, at A17;
5. Philip Shenon, Justice Dept. Chief Is Facing Test in Minnesota, N.Y. TIMES, Nov. 13, 2007, at A1.
6. On warrantless surveillance, see David Johnston, Bush Intervened in Dispute Over N.S.A. Eavesdropping, N.Y. TIMES, May 16, 2007, at A1.
7. On the other more serious charges, see infra Part III. Owen Fiss offers a concise summary focusing on the role of the Department of Justice in Law is Everywhere, 117 YALE L.J. 256 (2007) (citing primary sources).
8. On the lack of independence of Attorney General Gonzales, see Eric Lipton & David Johnston, Gonzales s Critics See Lasting, Improper Ties to White House, N.Y. TIMES, Mar. 15, 2007, at A24. As of this writing, Judge Mukasey's nomination has been confirmed by the Senate and he has taken charge of the Department of Justice. Whether and to what extent his promises of greater independence from the White House will be realized remains to be seen. There is reason, from his Senate testimony, to worry.
9. See Philip Shenon, Challenges Awaiting, Mukasey Takes Ceremonial Oath, N.Y. TIMES, Nov. 15, 2007, at A26.
10. The most comprehensive study on professional independence in private practice is Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1 (1988).
11. For post-Watergate calls for professional independence see Removing Politics from the Administration of Justice: Hearings on S. 2803 and S. 2978 Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 93d Cong. 84 (1974) [hereinafter Removing Politics];
12. Ken Gormley, An Original Model of the Independent Counsel Statute, 97 MICH. L. REV. 601, 608-33 (1998) (tracing dialogue on professional independence post-Watergate in congressional debates leading to the independent counsel statute). On the concept of professional independence as autonomy from the state and from state regulation, see MODEL RULES OF PROF'L CONDUCT pmbl. (1983) ("The legal profession is largely self-governing. . . . To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.");
13. see also Evan A. Davis, The Meaning of Professional Independence, 103 COLUM. L. REV. 1281, 1290-92 (2003) (arguing against federal regulation of attorneys post-Enron because lawyers in private practice are often required to protect their clients from the government).
14. MODEL RULES OF PROF'L CONDUCT R. 2.1 (1983).
15. Id. R. 2.1 cmt. 1.
16. Id.
17. Id. R. 1.16(a)(1); see also id. R. 1.16(b) (voluntary withdrawal).
18. Id. R. 1.2(d).
19. Id. R. 1.3 cmt. 1. For discussion of the practical and theoretical ambiguities that arise from these competing injunctions for lawyers in private practice, see Stephen L. Pepper, Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering, 104 YALE L.J. 1545 (1995).
20. See, e.g., DANIEL J. MEADOR, THE PRESIDENT, THE ATTORNEY GENERAL, AND THE DEPARTMENT OF JUSTICE 27-28 (1980): Because resources are always less than infinite in government departments, and are usually inadequate to do everything a department is charged with doing, priorities are necessary. If the Department of Justice is to function rationally, policies must be established as to how the government's legal and investigative resources are to be used. This necessarily involves decisions that some laws are to be enforced more vigorously than others. . . . . . . . . . . In other words, the lawyering work in the Department of Justice will be responsive, to an extent, to the results of the most recent presidential election. No one seems to question the propriety of this, and it is inevitable in a democratic government. Yet the considerations that go into these decisions are among those often described as political, thus illustrating that not all that is political is necessarily improper in the administration of justice . . . . See also Removing Politics, supra note 3 passim; Hearing to Examine the Nomination of Michael B. Muckasey to be Attorney General: Hearing Before the S. Comm. on the Judiciary, 110th Cong. (2007);
21. Confirmation Hearing on the Nomination of Alberto R. Gonzales to be Attorney General: Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2005); 153 CONG. REC. S15,648-01 (daily ed. Dec. 14, 2007) (comments of Sen. Cardin); 153 CONG. REC. S14147-01 (daily ed. Nov. 8, 2007) (executive session on Mukasey nomination); 153 CONG. REC. S13741-02 (daily ed. Nov. 5, 2007) (comments of Sen. Cardin); 151 CONG. REC. S923-02 (daily ed. Feb. 3, 2005); 151 CONG. REC. S688-02 (daily ed. Feb. 1, 2005); 150 CONG. REC. S11, 868-02 (daily ed. Dec. 7, 2004) (statement of Sen. Leahy);
22. Eric Lichtblau, Gonzales Is Confirmed in a Closer Vote Than Expected, N.Y. TIMES, Feb. 4, 2005, at A13.
23. See Joseph Story, Discourse Pronounced upon the Inauguration of the Author, as Dane Professor of Law in Harvard University (Aug. 25, 1829), in THE LEGAL MIND IN AMERICA: FROM INDEPENDENCE TO THE CIVIL WAR 176, at 180-81 (Perry Miller ed., 1962). Story states: Upon the actual administration of justice in all governments, and especially in free governments, must depend the welfare of the whole community. . . . The lawyer is placed, as it were, upon the outpost of defence, as a public sentinel, to watch the approach of danger, and to sound the alarm, when oppression is at hand. Id.
24. The oath of office provides: I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God. 5 U.S.C. § 3331 (2000).
25. See, e.g., NANCY V. BAKER, CONFLICTING LOYALTIES: LAW AND POLITICS IN THE ATTORNEY GENERAL'S OFFICE, 1789-1990 (1992);
26. DOUGLAS KMIEC, THE ATTORNEY GENERAL'S LAWYER: INSIDE THE MEESE JUSTICE DEPARTMENT (1992);
27. MEADOR, supra note 10; Betty Houchin Winfield, "To Support and Defend the Constitution of the United States Against All Enemies, Foreign and Domestic": Four Types of Attorneys General and Wartime Stress, 69 MO. L. REV. 1095 (2004); see also infra Part III.
28. See, e.g., The Nomination of Michael B. Mukasey to be Attorney General: Hearings Before the S. Comm. on the Judiciary, 110th Cong. (2007) (Bush II);
29. Confirmation Hearing on the Nomination of Alberto R. Gonzales to be Attorney General: Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2005) (Bush II);
30. The Confirmation of Edwin Meese III to be Attorney General of the United States: Hearings Before the S. Comm. on the Judiciary, 99th Cong. (1985) (Reagan);
31. The Prospective Nomination of Griffin B. Bell, of Georgia, to be Attorney General: Hearings Before the S. Comm. on the Judiciary, 95th Cong. (1977) (Carter).
32. Gordon, supra note 3, at 13-14.
33. See, e.g., BURTON J. BLEDSTEIN, THE CULTURE OF PROFESSIONALISM: THE MIDDLE CLASS AND THE DEVELOPMENT OF HIGHER EDUCATION IN AMERICA 80-128 (1976);
34. THOMAS L. HASKELL, THE EMERGENCE OF PROFESSIONAL SOCIAL SCIENCE (1977);
35. MARGALI SARFATTI LARSON, THE RISE OF PROFESSIONALISM: A SOCIOLOGICAL ANALYSIS (1977);
36. THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA (Gerard W. Gawalt ed., 1984).
37. Norman W. Spaulding, The Discourse of Law in Time of War: Politics and Professionalism During the Civil War and Reconstruction, 46 WM. & MARY L. REV. 2001 (2005).
38. In the lived experience of nineteenth-century professionals, of course, action and ideology reflected quite mixed positions along this trajectory. Different professional groups and individuals practicing within those professions undoubtedly developed unique conceptual frames to rationalize and regulate their relationships to craft and client. Nothing about my argument in Part I is intended to deny that complexity for lawyers, especially those who served in the office of the Attorney General and the Department of Justice. I simply leave to another day the task of uncovering the ways in which practicing lawyers internalized specific understandings about independence. An excellent starting point on lawyers in private practice is Robert Gordon, The Ideal and Actual in the Law: Fantasies and Practices of New York City Lawyers, 1870-1910, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA, supra note 16.
39. Histories of the office of the Attorney General have glossed over or ignored altogether the profound cultural, legal, and institutional significance of these changes, particularly the central influence of the national security and civil rights emergencies provoked by the war and Reconstruction. See infra Part II.B.
40. Ralph Waldo Emerson, Self-Reliance, in 1 THE NORTON ANTHOLOGY OF AMERICAN LITERATURE 1045, 1047 (4th ed. 1994).
41. Id.
42. Id. at 1056.
43. Id. at 1047.
44. Id. at 1049.
45. Id. at 1046.
46. Id. at 1047.
47. Id. at 1048.
48. Id. at 1046.
49. Id.
50. Id. at 1047.
51. Id. at 1046.
52. Id. at 1049.
53. See id. at 1045 n.1 (editor's note).
54. Id. at 1046 (emphasis added).
55. Id. at 1048-49. "[I]f you would be a man, speak what you think to-day in words as hard as cannon balls, and to-morrow speak what to-morrow thinks in hard words again, though it contradict everything you said to-day. . . . To be great is to be misunderstood." Id. at 1050. Emerson was emphatic on the point: "I appeal to your customs, I must be myself, I cannot break myself any longer for you, or you. If you can love me for what I am, we shall be the happier. If you cannot, I will seek to deserve that you should. I must be myself. I will not hide my tastes or aversions. I will trust that what is deep is holy, that I will do strongly before the sun and the moon whatever only rejoices me, and the heart appoints." Id. at 1056. His insouciance and defiance are of course unmistakably romantic. See NANCY L. ROSENBLUM, ANOTHER LIBERALISM: ROMANTICISM AND THE RECONSTRUCTION OF LIBERAL THOUGHT 94, 103 (1987). On the position of romantics regarding the law and social rules, see id. at 34-56. I am grateful to Nomi Stolzenberg for the reference.
56. Emerson, supra note 20, at 1056.
57. We should not be ashamed of giving voice to "that divine idea which each of us represents." Id. at 1046.
58. Id. at 1056.
59. Id. at 1057.
60. Id.
61. Id. at 1055. "Man does not stand in awe of man, nor is the soul admonished to stay at home, to put itself in communion with the internal ocean, but it goes abroad to beg a cup of water of the urns of men." Id.
62. Id. at 1049.
63. Id.
64. Id. at 1052. "The poise of the planet, the bended tree recovering itself from the strong wind, the vital resources of every vegetable and animal, are also demonstrations of the self-sufficing, and therefore self-relying soul. All history from its highest to its trivial passages is the various record of this power." Id. at 1055.
65. Id. at 1057.
66. GEORGE M. FREDRICKSON, THE INNER CIVIL WAR: NORTHERN INTELLECTUALS AND THE CRISIS OF THE UNION 12 (1993).
67. Emerson, supra note 20, at 1048. On morally activist role critics, see generally ARTHUR APPLBAUM, ETHICS FOR ADVERSARIES (1999);
68. ETHICS IN PRACTICE: LAWYERS' ROLES, RESPONSIBILITIES, AND REGULATION (Deborah L. Rhode ed., 2000);
69. DAVID LUBAN, LAWYERS AND JUSTICE (1988);
70. DAVID LUBAN, LEGAL ETHICS AND HUMAN DIGNITY 19-64 (2007);
71. WILLIAM H. SIMON, THE PRACTICE OF JUSTICE: A THEORY OF LAWYERS' ETHICS (1998);
72. THE GOOD LAWYER: LAWYERS' ROLES AND LAWYERS' ETHICS (David Luban ed., 1984); Gordon, supra note 3;
73. Jesselyn Radack, Tortured Legal Ethics: The Role of The Government Advisor in the War on Terrorism, 11 U. COLO. L. REV. 1 (2006);
74. Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1 (1975).
75. Emerson, supra note 20, at 1050.
76. Id. at 1052.
77. Id. at 1056.
78. Id. at 1062.
79. I return to this issue in Part III, infra.
80. Emerson, supra note 20, at 1061 ("And so the reliance on Property, including the reliance on governments which protect it, is the want of self-reliance.").
81. MAX WEBER, Politics as a Vocation, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 85 (H.H. Gerth & C. Wright Mills eds. & trans., 1958);
82. G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE 1815-1835, at 49-50 (1991);
83. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 53-75 (1969); Gordon, supra note 3 passim.
84. See, e.g., Major L. Wilson, The "Country" Versus the "Court": A Republican Consensus and Party Debate in the Bank War, 15 J. EARLY REPUBLIC 619, 638-41 (1995) (discussing competing claims of corruption in party politics by Whigs and Jacksonian Democrats).
85. FREDRICKSON, supra note 46, at 13.
86. Id. at 14.
87. Id. at 14-15.
88. Id. at 14, 16-17. By 1856 even Emerson himself would speak out in praise of John Brown's raid. Id. at 39-40.
89. Id. at 35.
90. Id. at 48.
91. Id. at 32.
92. Id. at 122-23.
93. Id. at 134-39 (discussing work of Francis Lieber for the Loyal Publication Society, Joseph Parrish Thompson's address before the Union League Club of New York, Henry Bellow's sermon "Unconditional Loyalty," and Horace Bushnell's sermon "Popular Government by Divine Right").
94. Id. at 169.
95. Id.
96. Id. at 169-70.
97. Id. at 170 (quoting Oliver Wendell Holmes, The Soldier's Faith, An Address Delivered on Memorial Day at a Meeting Called by the Graduating Class of Harvard University (May 30,1895), in OLIVER WENDELL HOLMES, SPEECHES 56, 59 (1896)).
98. LOUIS MENAND, THE METAPHYSICAL CLUB 35 (2001).
99. Id. at 37.
100. Id. at 43.
101. Id.
102. Id. at 51.
103. Id. at 43.
104. Id. at 40.
105. Id. at 43.
106. Id. at 43-44.
107. Id. at 54.
108. Id.
109. FREDRICKSON, supra note 46, at 172.
110. Id. This is not to say that the war diminished the romantic impulses of these mid-Victorian men. Military valor, even, and perhaps especially, in the face of senseless death, was potentially both stoic and chivalric. See ROSENBLUM, supra note 35, at 10, 13-14 (describing nineteenth-century "romantic militarism" as a species of "heroic individualism" that makes a "standing criticism of utilitarian calculation" and reflects a "longing for action corresponding to the dignity and intensity of human desire") (internal quotation marks omitted). But the embrace of institutionally prescribed duty for duty's sake, and the simultaneous subordination of personal identity and interest, reflects a turn from, or at least a displacement of, the profoundly individualistic romantic impulses in Emerson's concept of self-reliance.
111. FREDRICKSON, supra note 46, at 170.
112. Id. at 172 (quoting Letter from Lowell to Miss Shaw (June 17, 1863), in EDWARD W. EMERSON, LIFE AND LETTERS OF CHARLES RUSSELL LOWELL 259 (1907)).
113. Id. at 173 (quoting Letter from Lowell to Henry Lee Higginson (Sept. 10, 1864), in EMERSON, supra note 83, at 341-42).
114. Id. at 175-76; cf. id. at 176 (discussing Emerson's conversion).
115. MENAND, supra note 69, at 58.
116. Id. at 59.
117. FREDRICKSON, supra note 46, at 174.
118. See Gordon, supra note 3; cf. G. EDWARD WHITE, JUSTICE OLIVER WENDELL HOLMES: LAW AND THE INNER SELF 210-15 (1993) (suggesting that professionalism may have been a mere cloak for self interest).
119. MAX WEBER, The Meaning of Discipline, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY, supra note 54, at 253, 253.
120. Id. at 254-61.
121. Id. at 261.
122. Id. at 262.
123. See HANNAH ARENDT, EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL (1963);
124. WILLIAM H. WHYTE, JR., THE ORGANIZATION MAN (1956). Burton Bledstein's otherwise brilliant account of the rise of professional authority in the nineteenth century underestimates this disciplinary side of professional detachment, especially the ways in which bureaucratic and industrial organization toward the end of the century almost immediately threatened mid-Victorians' ideals of independence. See BLEDSTEIN, supra note 16, at 90 (describing clients as "helpless"); id. at 92 ("[The mid-Victorian professional] resisted all corporate encroachments and regulations upon his independence, whether from government bureaucrats, university trustees, business administrators, public laymen, or even his own professional associations. The culture of professionalism released the creative energies of the free person who was usually accountable only to himself and his personal interpretation of the ethical standards of his profession."). Bureaucracy and industrial capitalism created both clients with powerful leverage over the lawyers advising them and increasingly hierarchical structures of practice.
125. See LARSON, supra note 16; ROBERT H. WEIBE, THE SEARCH FOR ORDER, 1877-1920 (1967);
126. Gerard W. Gawalt, The Impact of Industrialization on the Legal Profession in Massachusetts, 1870-1900, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA, supra note 16, at 97;
127. Wayne K. Hobson, Symbol of the New Profession: Emergence of the Large Law Firm, 1870-1915, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA, supra note 16, at 3.
128. World War I was itself, in some sense, the product of the culture of bureaucratic organization. JOHN KEEGAN, THE FIRST WORLD WAR chs. 2 & 3 (1998) (arguing that, according to the dictates of modern planning for mass warfare, once Germany mobilized, sheer logistics required other European powers to mobilize); id. ch. 6 (describing the absurdity of prolonged trench warfare).
129. For a discussion of the influence of World War I on Weber's views, see WOLFGANG J. MOMMSEN, MAX WEBER AND GERMAN POLITICS, 1890-1920 190-389 (Michael S. Steinberg trans., 1984), and REINHARD BENDIX, MAX WEBER: AN INTELLECTUAL PORTRAIT 27, 451 (1960).
130. WEBER, supra note 54, at 84.
131. Id. at 85.
132. Id. at 84.
133. Id.
134. Id. at 86.
135. Id.
136. Id. at 86-88, 108-09. In political office, the propertyless may also be more revolutionary: A quite reckless and unreserved political idealism is found if not exclusively at least predominantly among those strata who by virtue of their propertylessness stand entirely outside of the strata who are interested in maintaining the economic order of a given society. This holds especially for extraordinary and hence revolutionary epochs. Id. at 86. Those who live "off" politics may thus be both susceptible to the corruption that maintains the status quo and to revolutionary idealism.
137. Id. at 120.
138. Id. at 115.
139. Id.
140. Id. at 121.
141. Id. at 122.
142. Id.
143. Id. at 121. "It is the specific means of legitimate violence as such in the hand of human associations which determines the peculiarity of all ethical problems of politics." Id. at 124.
144. Id. at 125.
145. Id. at 125-26.
146. Id. at 125.
147. Id. at 121.
148. Id. at 127.
149. Id. at 115-16. "'Lack of distance' per se is one of the deadly sins of every politician." Id. at 115.
150. Id. at 95.
151. Id.
152. MOMMSEN, supra note 95, at 408, 413; see also id. at 342, 413, 439.
153. Id. at 190-282.
154. WEBER, supra note 54, at 94.
155. Id.
156. MAX WEBER, Science as a Vocation, in FROM MAX WEBER: ESSAYS ON SOCIOLOGY, supra note 54, at 144-46;
157. see also MAX WEBER, MAX WEBER ON LAW IN ECONOMY AND SOCIETY (Max Rheinstein ed., Edward Shils & Max Rheinstein trans., 1954).
158. MOMMSEN, supra note 95, at 441.
159. Id.
160. WEBER, supra note 54, at 147.
161. MOMMSEN, supra note 95, at 442. But see id. (expressing ambivalence about Weber's commitment to an ethic of responsibility); id. at 442 n.70, 443 n.74 (citing Wolfgang Schluchter and H.H. Bruun).
162. Id. at 442.
163. BAKER, supra note 13, at 50. The initial salary of $2000 was raised to $4000 by 1831, but remained mere until 1853 when Congress raised it to $8000. Id. at 56. See also HOMER CUMMINGS & CARL MCFARLAND, FEDERAL JUSTICE: CHAPTERS IN THE HISTORY OF JUSTICE AND THE FEDERAL EXECUTIVE 80-81 (1937).
164. BAKER, supra note 13, at 50.
165. Id. at 51 (quoting Letter from Randolph (1790), in MONCURE DANIEL CONWAY, OMITTED CHAPTERS OF HISTORY DISCLOSED IN THE LIFE AND PAPERS OF EDMUND RANDOLPH 135 (1888)).
166. CUMMINGS & MCFARLAND, supra note 128, at 81.
167. In 1819 Congress finally provided $1000 for a clerk and $500 for contingent expenses, though the salary was later cut to $800 and the expense allocation eliminated altogether. An office was provided in the early 1820s. BAKER, supra note 13, at 56.
168. Id.
169. CUMMINGS & MCFARLAND, supra note 128, at 78.
170. The practice grew exponentially during the Civil War. See CONG. GLOBE, 41st Cong., 2d Sess. 3034-39 (1870).
171. BAKER, supra note 13, at 58.
172. CUMMINGS & MCFARLAND, supra note 128, at 81.
173. BAKER, supra note 13, at 55. As Cummings and McFarland emphasize, even in colonial times "[t]he attorney general himself was concerned with making a livelihood. His salary was small, and he was expected to derive most of his income from private practice. By assuming criminal prosecutions, he could monopolize one considerable body of litigation and thereby increase his fees and advertise his skill." CUMMINGS & MCFARLAND, supra note 128, at 13.
174. BAKER, supra note 13, at 58.
175. Id. at 59; CALEB CUSHING, A REPORT OF THE ATTORNEY GENERAL, SUGGESTING MODIFICATIONS IN THE MANNER OF CONDUCTING THE LEGAL BUSINESS OF THE GOVERNMENT, H.R. EXEC. DOC. NO. 33-95, at 19 (1854).
176. As Caleb Cushing argued: there is reason to doubt whether, at the present day, in the United States, it is expedient that a head of a department should, under any circumstances, continue in the practice of law as a profession. Whatever change in the amount of public business the present greatness and wealth of the country may have produced, they have produced a still greater change in the multitude and urgency of the private interests which assail the government. . . . Formerly, in an age of simpler manners, when the public expenditures were less, the number of places less, the population of the country less - at such a time a secretary, eminent in the legal profession, might, without possibility of reproach or suspicion of evil, take charge of private suits or interests at the seat of government. H.R. EXEC. DOC. NO. 33-95, at 19-20. Indeed, Cushing himself was the subject of decidedly off-color criticism by his contemporaries for inconsistency of position. See Henry Barrett Learned, The Attorney-General and the Cabinet, 24 POL. SCI. Q. 444, 459 (1909).
177. More directly, there is evidence that Roger Taney, Attorney General for President Andrew Jackson during the controversy over renewal of the charter of the Second National Bank, communicated government confidences to and secured government financial aid for a Maryland state bank owner and personal client who stood to gain by dissolution of the Second National Bank. On Taney's role in the bank controversy, itself a national political event grounded in competing visions of independence, see ARTHUR M. SCHLESINGER, JR., THE AGE OF JACKSON 89, 101 (1953);
178. CARL BRENT SWISHER, ROGER B. TANEY 160-325 (1935);
179. Lynn, L. Marshall, The Authorship of Jackson's Bank Veto Message, 50 MISS. VALLEY HIST. REV. 466 (1963);
180. Walter George Smith, Roger Brooke Taney, 47 AM. L. REG. 201 (1899); Wilson, supra note 55.
181. On Taney's conflict of interest, see WALKER LEWIS, WITHOUT FEAR OR FAVOR 207-23 (1965); SWISHER, supra, at 219-45.
182. Of course, nothing prevented attorneys general from using full-time engagement as a springboard for lucrative work after leaving office, or, for that matter, from interpreting their duties in office in ways that aided former clients. See supra note 141 (discussing Taney's conflict of interest in the bank controversy); see also infra note 202 (discussing the effect of Richard Olney's conflicts on early enforcement of the Sherman Act).
183. See GERARD W. GAWALT, THE PROMISE OF POWER: THE EMERGENCE OF THE LEGAL PROFESSION IN MASSACHUSETTES, 1760-1840 (1979); Spaulding, supra note 17, at 2019-40 (discussing history of antebellum professional identity and organization).
184. See Department of Justice Order No. 635-74, 40 Fed. Reg. 58,643 (Dec. 18, 1975).
185. Act to Establish the Judicial Courts of the United States, ch. 20 § 35, 1 Stat. 73, 93 (1789).
186. CUMMINGS & MCFARLAND, supra note 128, at 84-90.
187. Learned, supra note 141, at 448-49.
188. See infra Part II.B (discussing the problem of confusion).
189. Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 HARV. L. REV. 49, 108-09 (1923).
190. The effect is magnified by the fact that the Senate has rarely exercised direct influence in the choice of attorneys general, so political accountability to Congress, while not trivial, comes for the most part ad hoc and ex post in oversight hearings. See infra note 154 (discussing post-scandal appointments of attorneys general who are more independent from the President).
191. BAKER, supra note 13, at 67.
192. Id. (emphasis added).
193. Id. at 67-68.
194. Id. at 67. Genuinely independent attorneys general, by contrast, tend to emerge either in less partisan political climates, or, more commonly, as a concession to an oppositional Congress or public obloquy following extralegal executive branch conduct in which a partisan Attorney General was complicit. Id. at 126. Benjamin Brewster was brought in by President Chester Arthur to handle prosecutions in the controversial Star Route scandal (valuable private postal route contracts had been awarded despite rampant bid-fixing and route manipulation; prominent Republican party officials and a senator were directly implicated). CUMMINGS & MCFARLAND, supra note 128, at 254-60. Calvin Coolidge hired Harlan Fiske Stone, then dean of the Columbia Law School, to help the Department of Justice recover from Harry Daugherty and A. Mitchell Palmer. Palmer was responsible for the infamous mass arrests, detentions, and deportations arising from the Red Scare in 1919 and 1920. BAKER, supra note 13, at 110-15. Daugherty, who passed on the leases at issue in the Teapot Dome scandal and appears to have been involved in the attempted cover up, was also twice charged and tried for conspiracy to defraud the government for taking money from a German company whose assets had been seized during World War I. Id. at 119-20. More recently, of course, Nixon's Attorney General John Mitchell, who approved the plan to install electronic surveillance in the Democratic National Committee headquarters and was convicted on five counts of obstruction of justice and perjury, id. at 120-25, was eventually succeeded by Edward Levi, a former law professor and president of the University of Chicago who had never before met President Ford and "had not registered with any political party for several years." Id. at 141-43. President Carter's selection of the former federal judge Griffin Bell was also the product of post-Watergate political pressure to select a more independent Attorney General. Id. at 151.
195. CALEB CUSHING, A REPORT OF THE ATTORNEY GENERAL, SUGGESTING MODIFICATIONS IN THE MANNER OF CONDUCTING THE LEGAL BUSINESS OF THE GOVERNMENT, H.R. EXEC. DOC. NO. 33-95 (1854); Learned, supra note 141, at 453-54. Jackson was not the first to see the need. Washington passed along to Congress a proposal drawn up by Randolph in 1791, but the bill died.
196. Sewall Key, The Legal Work of the Federal Government, 25 VA. L. REV. 165, 176 (1938). Madison proposed a similar concentration of legal work before the outbreak of the War of 1812, though it is not clear that he envisioned placing the Attorney General in charge. Congress did not act. Learned, supra note 141, at 445; see also id. at 455 (discussing Polk's proposal); cf. CUMMINGS & MCFARLAND, supra note 128, at 218 (discussing Attorney General Black and Bates' views).
197. See Hayburn's Case, 2 U.S. (2 Dall.) 408, 409 (1792); CUMMINGS & MCFARLAND, supra note 128, at 26-28; see also Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 DUKE L.J. 561, 590-618 (analyzing archival sources on Randolph's position in Hayburn's Case in terms of separation of powers).
198. Key, supra note 155, at 177.
199. Id.
200. Id. at 178; see also id. at 179 (discussing Webster's motivations).
201. Id. at 179 ("From 1830 on, the story is increasingly one of the struggle to maintain some semblance of unity in legal affairs in the face of the rising power of the departmental solicitors, a story in which the closing chapter probably has not by any means yet been written."). In the ensuing decades before 1870, Congress would add a Solicitor of the Internal Revenue Bureau, the War Department, the Navy Department, and the Post Office Department. See CONG. GLOBE, 41st Cong., 2d Sess. 3036 (1870); see also CUMMINGS & MCFARLAND, supra note 128, at 221 (describing creation of departmental solicitors); id. at 197-99 (discussing confusion surrounding handling of confiscation cases in 1861 and 1862).
202. CUMMINGS & MCFARLAND, supra note 128, at 219.
203. HAROLD M. HYMAN, A MORE PERFECT UNION: THE IMPACT OF THE CIVIL WAR AND RECONSTRUCTION ON THE CONSTITUTION (1975);
204. HAROLD M. HYMAN & WILLIAM M. WIECEK, EQUAL JUSTICE UNDER LAW: CONSTITUTIONAL DEVELOPMENT 1835-1875 (1982);
205. ROBERT J. KACZOROWSKI, THE POLITICS OF JUDICIAL INTERPRETATION: THE FEDERAL COURTS, DEPARTMENT OF JUSTICE, AND CIVIL RIGHTS 1866-1876 (2005).
206. CUMMINGS & MCFARLAND, supra note 128, at 220 ("As the war came to a close and reconstruction began, the legal business of the government increased."), ch. 10 passim; HYMAN, supra note 162; HYMAN & WIECEK, supra note 162; KACZOROWSKI, supra note 162.
207. See CONG. GLOBE, 41st Cong., 2d Sess. 3034-39 (1870).
208. See, e.g., JAMES A. HIGHTOWER, GOV'T AND GEN. RESEARCH DIV., CONG. RESEARCH SERV., FROM "ATTORNATUS" TO THE DEPARTMENT OF JUSTICE - AN HISTORICAL PERSPECTIVE OF THE NATURE OF THE ATTORNEY GENERALSHIP OF THE UNITED STATES AS EMBODIED IN THE DEPARTMENT OF JUSTICE ACT OF 1870 (1966), in Removing Politics, supra note 3, at 405, 417; Key, supra note 155, at 180; Learned, supra note 141, at 460-61. Other studies of the history of the office of the Attorney General ignore the war and Reconstruction period altogether. See, e.g., BAKER, supra note 13; Bloch, supra note 156.
209. A notable exception is CUMMINGS & MCFARLAND, supra note 128, ch. 10 passim; see also Seth P. Waxman, Twins at Birth: Civil Rights and the Role of the Solicitor General, 75 IND. L.J. 1297, 1300-05 (2000). But even Cummings and McFarland separate their description of impeachment and Stanbery's loyalty to Johnson in defiance of Reconstruction legislation from the establishment of the Department of Justice, which they too see as primarily intended to improve efficiency and avoid confusion. See id. ch. 11 passim. They are also overly optimistic about the effect of forming the Department and centralizing control for purposes of Reconstruction enforcement. See id. at 248. Waxman attends to the influence of Reconstruction enforcement, but his focus is on the creation of the office of the Solicitor General.
210. Lincoln's extralegal measures are well documented. See Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866); Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487); CUMMINGS & MCFARLAND, supra note 128, at 202-04, 206; DAVID HERBERT DONALD, LINCOLN (1995);
211. DANIEL FARBER, LINCOLN'S CONSTITUTION (2003);
212. HYMAN & WIECEK, supra note 162; MARK E. NEELY, JR., THE FATE OF LIBERTY (1991);
213. PHILIP S. PALUDAN, A COVENANT WITH DEATH: THE CONSTITUTION, LAW, AND EQUALITY IN THE CIVIL WAR ERA (1975);
214. J. G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN (1951);
215. CHARLES W. SANDERS, JR., WHILE IN THE HANDS OF THE ENEMY: MILITARY PRISONS OF THE CIVIL WAR (2005). On the specific role of lawyers both within and outside the Lincoln administration, see Spaulding, supra note 17, at 2040-94. Bates would later resign at least in part, it seems, from increasing concern about abuse of the war power. CUMMINGS & MCFARLAND, supra, at 204. He was, however, replaced by James Speed, who wrote an opinion justifying the trial and execution of Lincoln's assassins by military commission. Id.; see also THE DIARY OF EDWARD BATES 1859-1866 (Howard K. Beale ed. 1933).
216. See HYMAN & WIECEK, supra note 162, at 232-78 (1982); Spaulding, supra note 17, at 2040-81 (2005).
217. WILLIAM WHITING, WAR POWERS UNDER THE CONSTITUTION OF THE UNITED STATES 51, 60-61 (10th ed., Boston, Little, Brown 1864) (emphasis added). Whiting's comments are chillingly similar to the post-9/11 comments of Attorney General Ashcroft.
218. For some of Attorney General Ashcroft's claims regarding critics of the Bush administration's antiterrorism policies, see Neil A. Lewis, A Nation Challenged: The Senate Hearing; Ashcroft Defends Antiterror Plan; Says Criticism May Aid U.S. Foes, N.Y. TIMES, Dec. 7, 2001, at Al;
219. Katharine Q. Seelye, War on Terror Makes for Odd Twists in Justice System, N.Y. TIMES, June 23, 2002, § 1, at 16.
220. CUMMINGS & MCFARLAND, supra note 128, at 211-12 (describing Stanbery as "wholeheartedly with the President" in opposition to Reconstruction); id. at 212 (describing Stanbery's role in drafting veto message for the military Reconstruction bill); id. at 215 (describing Stanbery's refusal to defend the government in
221. HYMAN & WIECEK, supra note 162, at 446; see also HANS L. TREFOUSSE, IMPEACHMENT OF A PRESIDENT: ANDREW JOHNSON, THE BLACKS, AND RECONSTRUCTION 72-74 (1999).
222. HYMAN & WIECEK, supra note 162, at 446.
223. Id. at 447.
224. Id. at 446.
225. Id.; cf. KACZOROWSKI, supra note 162, at 38-39.
226. HYMAN & WIECEK, supra note 162, at 448 (emphasis added); see also TREFOUSSE, supra note 171, at 76-77.
227. HYMAN & WIECEK, supra note 162, at 448.
228. CONG. GLOBE, 41st Cong., 2d Sess. 3034-39 (1870); HYMAN & WIECEK, supra note 162, at 450. The Senate Judiciary Committee secured a resolution requesting the position of the Attorney General on centralizing the government's legal work on December 16, 1867. Stanbery's reply advocated establishing a Solicitor General to argue cases in the Supreme Court as well as a Law Department under the control of the Attorney General. CUMMINGS & MCFARLAND, supra note 128, at 222-23.
229. HYMAN & WIECEK, supra note 162, at 455-56. On Johnson's impeachment and the relationship to his refusal to enforce reconstruction laws, see MICHAEL LES BENEDICT, PRESERVING THE CONSTITUTION: ESSAYS ON POLITICS AND THE CONSTITUTION IN THE RECONSTRUCTION ERA (2006);
230. MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF ANDREW JOHNSON (1973);
231. CHESTER G. HEARN, THE IMPEACHMENT OF ANDREW JOHNSON (2000); TREFOUSSE, supra note 171.
232. CUMMINGS & MCFARLAND, supra note 128, at 215.
233. The congressional record reveals that centralization was considered from the very outset of the Civil War. In July, 1861, Congress authorized the Attorney General to exercise control over district attorneys and to retain outside counsel. 12 Stat. 285 (1861); see Key, supra note 155, at 180-81. But the effect of the statute was compromised four days later when Congress passed legislation expressly reserving the traditional authority of the Solicitor of the Treasury, and Congress later extended authority to guide district attorneys to the Solicitor of Internal Revenue. See 14 Stat. 471 (1867); 12 Stat. 327 (1861); see also CUMMINGS & MCFARLAND, supra note 128, at 218-25.
234. CONG. GLOBE, 41st Cong., 2d Sess. 3036 (1870). As Congressman Jenkes asserted: It is a misfortune that there should be different constructions of the laws of the United States by different law officers of the United States. Whether the opinion of the Attorney General be right or wrong, it is an opinion which ought to be followed by all the officers of the Government until it is reversed by the decision of some competent court. It is for the purpose of having a unity of decision, a unity of jurisprudence, if I may use that expression, in the executive law of the United States, that this bill proposes that all the law officers therein provided for shall be subordinate to one head. Id.; see also CUMMINGS & MCFARLAND, supra note 128, at 222.
235. According to the statute, the Attorney General is made the head of the Department of Justice; a Solicitor General and two assistant attorneys general are established to assist him; the solicitors from other departments are transferred to and placed under the supervision and control of the head of the Department of Justice; the Attorney General and other departments are barred from retaining outside counsel; the opinion-giving function is formally centralized in the office of the Attorney General, as is control of the district attorneys; and the President is given the power to appoint, with the advice and consent of the Senate, all senior and assistant solicitors; all others are to be appointed and removed by the Attorney General. See Act to Establish the Department of Justice, 16 Stat. 162 (1870).
236. CUMMINGS & MCFARLAND, supra note 128, at 227.
237. Hightower, supra note 165, at 409-11 (suggesting that an Attorney General vested with centralized control is implicit in founding a national government); id. at 415-16 (discussing Jackson and Cushing); Key, supra note 155, at 180; Learned, supra note 141, at 456-57.
238. See SCHLESINGER, supra note 141, at 47-73; Richard P. Longaker, Was Jackson's Kitchen Cabinet a Cabinet?, 44 MISS. VALLEY HIST. REV. 94 (1957).
239. Roger Taney, the replacement for Jackson's first Attorney General Berrien (who turned out to be tepid on attacking the Second National Bank), was among his most loyal supporters, helping to draft his bank veto message and eventually taking over the Treasury Department to effectuate the withdrawal of federal deposits. See supra note 141.
240. CALEB CUSHING, A REPORT OF THE ATTORNEY GENERAL, SUGGESTING MODIFICATIONS IN THE MANNER OF CONDUCTING THE LEGAL BUSINESS OF THE GOVERNMENT, H.R. EXEC. DOC. NO. 33-95, at 11 (1854).
241. Id. at 12.
242. Id. at 14.
243. Id. at 15-16 ("So far the administrative power, and the corresponding administrative responsibility exist, and they require modification in details only in order to be completely adapted to the theory of departmental organization."); id. at 16 ("The President undoubtedly has the power to assign all these cases, as they arise, to the charge of the Attorney General; and it would be fitting that he should do so, provided the corresponding changes in the organization of this office be authorized by Congress.") .
244. Id. at 11 ("Where the laws define what is to be done by a given head of department, and how he is to do it, there the President's discretion stops" ).
245. Id. at 6.
246. Id.
247. 1 Op. Att'y Gen. 624, 625-26 (1823).
248. Id. at 626; see also 5 Op. Att'y Gen. 630 (1852).
249. CUMMINGS & MCFARLAND, supra note 128, at 82; see also id. at 86.
250. By 1935, of course, the Supreme Court resolved the tension between strict constructionist and unitary theories decidedly in favor of presidential control. See Humphrey's Ex'r v. United States, 295 U.S. 602 (1935); Myers v. United States, 272 U.S. 602 (1926).
251. KACZOROWSKI, supra note 162, chs. 7-9 passim. Kaczorowski, in my view, overemphasizes the effect of Supreme Court doctrine, which itself may have been influenced by political sentiment but, for Department of Justice officers, would nevertheless have helped rationalize under-enforcement. For a critique of Supreme Court-centric histories of the period, see Pamela Brandwein, A Judicial Abandonment of Blacks? Rethinking the "State Action" Cases of the Waite Court, 41 LAW & SOC'Y REV. 343 (2007).
252. On the political history, see ERIC FONER, RECONSTRUCTION 1863-1877 (1988);
253. WILLIAM GILLETTE, RETREAT FROM RECONSTRUCTION 1869-1879 (1979); see also CUMMINGS & MCFARLAND, supra note 128, at 234-35 (discussing political repercussions for Attorney General George H. Williams, who defended enforcement efforts in the early years of the second Grant administration).
254. Edwin L. Godkin, The Inflation of the Attorney General, THE NATION, Oct. 1, 1874, at 214-15.
255. For less cynical views of the project of civil rights enforcement that highlight the dire racial and political consequences of the retreat from Reconstruction see, FONER, supra note 199; GALETTE, supra note 199; HYMAN & WIECEK, supra note 162; KACZOROWSKI, supra note 162.
256. On underenforcement and misuse of the Sherman Act, particularly by Grover Cleveland's Attorney General, Richard Olney, see GERALD G. EGGERT, RICHARD OLNEY: EVOLUTION OF A STATESMAN (1974);
257. HENRY JAMES, RICHARD OLNEY AND HIS PUBLIC SERVICE (1971);
258. RUDOLPH J.R. PERITZ, COMPETITION POLICY IN AMERICA 1888-1992 (1996);
259. HANS B. THORELLI, THE FEDERAL ANTITRUST POLICY: ORIGINATION OF AN AMERICAN TRADITION (1955);
260. Donald J. Pisani, Promotion and Regulation: Constitutionalism and the American Economy, 74 J. AM. HIST. 740, 760 (1987);
261. cf. WILLIAM LETWIN, LAW AND ECONOMIC POLICY IN AMERICA: THE EVOLUTION OF THE SHERMAN ANTITRUST ACT (1965);
262. Wendell Berge, Problems of Enforcement and Interpretation of the Sherman Act, 38 AM. ECON. REV. 172 (1948).
263. On the effect of Theodore Roosevelt's more aggressive stance with Attorney General Phillander Knox and Charles J. Bonaparte, see EDMUND MORRIS, THEODORE REX 88, 196 (2001);
264. PERITZ, supra; THORELLI, supra; Arthur M. Johnson, Antitrust Policy in Transition, 1908: Ideal and Reality, 48 MISS. VALLEY HIST. REV. 415 (1961).
265. On the Palmer Raids, see Charges of Illegal Practices of the Department of Justice : Hearings on "Report upon the Illegal Practices of the United States Department of Justice" Before a Subcomm. of the S. Comm. on the Judiciary, 66th Cong. (1921);
266. Attorney General A. Mitchell Palmer on Charges Made Against Department of Justice by Louis F. Post and Others: Hearings Before the H. Comm. on Rules, 66th Cong. (1920);
267. R.G. BROWN ET. AL., TO THE AMERICAN PEOPLE: REPORT UPON THE ILLEGAL PRACTICES OF THE UNITED STATES DEPARTMENT OF JUSTICE (1920),
268. reprinted in MASS VIOLENCE IN AMERICA: ILLEGAL PRACTICES OF THE DEPARTMENT OF JUSTICE (Robert M. Fogelson & Richard E. Rubenstein eds., 1969);
269. ZECHARIAH CHAFEE, JR., FREE SPEECH IN THE UNITED STATES (1967);
270. ROBERT K. MURRAY, RED SCARE: A STUDY IN NATIONAL HYSTERIA 1919-20 (1964);
271. LOUIS F. POST, THE DEPORTATIONS DELIRIUM OF NINETEEN-TWENTY (1970);
272. WILLIAM PRESTON, JR., ALIENS AND DISSENTERS: FEDERAL SUPPRESSION OF RADICALS, 1903-1933 (2d ed. 1963);
273. David Cole, The New McCarthyism: Repeating History in the War on Terrorism, 38 HARV. C.R.-C.L. L. REV. 1 (2003);
274. Stanley Cohen, A Study in Nativism: The American Red Scare of 1919-20, 79 POL. SCI. Q. 52 (1964).
275. On Watergate, see Removing Politics, supra note 3; BAKER, supra note 13;
276. STANLEY I. KUTLER, WARS OF WATERGATE: THE LAST CRISIS OF RICHARD NIXON (1990); Gormley, supra note 3.
277. Civil service reform in the late nineteenth century did not reach the issue of political corruption in the highest levels of the Department of Justice, see JOHN G. SPROAT, THE BEST MEN: LIBERAL REFORMERS IN THE GILDED AGE 257-71 (1968). The Hatch Act reaches only overt political activity, see 5 U.S.C. §§ 7321-7326; 5 C.F.R. §§ 733-734 (2007). The success of the independent counsel statute, 28 U.S.C. §§ 591-599, which expired in 1999, is open to question. See Morrison v. Olson, 487 U.S. 654 (1988);
278. Robert W. Gordon, Imprudence and Partisanship: Starr's OIC and the Clinton-Lewinsky Affair, 68 FORDHAM L. REV. 639 (1999); Gormley, supra note 3;
279. Benjamin J. Priester et al., The Independent Counsel Statute: A Legal History, L. & CONTEMP. PROBS., Winter 1999, at 5;
280. Cass R. Sunstein, Bad Incentives and Bad Institutions, 86 GEO. L.J. 2267 (1998). Finally, the ability of the Office of Professional Responsibility to check presidential influence on high level Department of Justice Officials is also open to question. See Att'y Gen. Order No. 635-1974 (Dec. 8, 1975); Att'y Gen. Order No. 1931-1994 (Nov. 8, 1994); see also Att'y Gen. Order No. 2791-2005 (Dec. 23, 2005) ("Nothing in the final rule [establishing the Advisory Office of the Office of Professional Responsibility] shall be construed as affecting the functions or overriding the authority of the Office of Legal Counsel as established by 28 C.F.R. 0.25.");
281. Scott Shane, Waterboarding Focus of Inquiry by Justice Department, N.Y. TIMES, Feb. 23, 2008, at A1 (noting that OPR "reports to the attorney general" and that "[i]n 2006, when [the head of OPR] tried to look into the Justice Department's role in approving the National Security Agency's domestic surveillance program, Mr. Bush blocked the investigation by denying . . . investigators the necessary security clearances" until November 2007).
282. See, e.g., DAVID COLE & JULES LOBEL, LESS SAFE, LESS FREE: WHY AMERICA IS LOSING THE WAR ON TERROR (2007);
283. LUBAN, supra note 47, at 162-206; THE TORTURE DEBATE IN AMERICA (Karen J. Greenberg ed., 2006); Cole, supra note 202; Winfield, supra note 13;
284. David Cole, The Man Behind the Torture, N.Y. REV. BOOKS, Dec. 6, 2007, at 38 (reviewing JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW & JUDGMENT INSIDE THE BUSH ADMINISTRATION (2007));
285. David Cole, What Bush Wants to Hear, N.Y. REV. BOOKS, Nov. 17, 2005, at 8 (reviewing JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 (2005));
286. Lawyers' Statement on Bush Administration Torture Memos (Aug. 4, 2004), available at http://www.hrw.org/pub/2004/lawyers-statement.pdf;
287. cf. GOLDSMITH, THE TERROR PRESIDENCY, supra;
288. Jeffrey K. Shapiro, Legal Ethics and Other Perspectives, in THE TORTURE DEBATE IN AMERICA, supra, at 229. The factual record on the precise role government lawyers played is, of course, incomplete, and will likely remain so. That renders any assessment, including the one that follows, somewhat speculative. For a basic summary of the memoranda on the issue of torture, see LUBAN, supra, 162-206.
289. For the most comprehensive publicly available collection of the work product of Bush administration lawyers, see THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB (Karen J. Greenberg and Joshua L. Dratel eds., 2005).
290. Indeed, their work may well warrant more serious professional, civil, and criminal sanctions.
291. See, e.g., LUBAN, supra note 47, at 164 (taking at face value John Yoo's claim that he was engaged in "lawyering as usual," not "offering morally motivated advice"); Stephen Holmes, Is Defiance of Law a Proof of Success? Magical Thinking in the War on Terror, in THE TORTURE DEBATE IN AMERICA, supra note 204, at 119 ("Since ancient times, in fact, legal minds have proved willing to provide technically-refined justifications for the carefully dosed infliction of pain as a method of extracting information.");
292. Neil M. Peretz, The Limits of Outsourcing Ethical Responsibilities of Federal Government Attorneys Advising Executive Branch Officials, 6 CONN. PUB. INT. L.J. 23, 60-62 (2006) ("Many lawyers are like Yoo in eschewing morality as a possible criterion for analysis. They believe there is a 'demarcation between the legality and morality of a proposed course of conduct, with lawyers providing information on the former, but leaving the latter untouched, to be resolved only at the client's discretion.' This matches the long-established view of the lawyer as an 'amoral technician,' who optimizes on client loyalty and obedience.");
293. Robert K. Vischer, Legal Advice as Moral Perspective, 19 GEO. J. LEGAL ETHICS 225, 226-27 (2006) ("[F]or the most part, the legal profession lacks discernible moral resources with which to condemn the OLC attorneys, notwithstanding their perceived facilitation of torture. The dominant view of legal practice is founded on a purported demarcation between the legality and morality of a proposed course of conduct, with lawyers providing information on the former but leaving the latter untouched, to be resolved only at the client's discretion.").
294. LUBAN, supra note 47, at 197-98, 201 ; Christopher Kutz, The Lawyers Know Sin: Complicity in Torture, in THE TORTURE DEBATE IN AMERICA, supra note 204, at 241 (analogizing professional failure of Bush administration lawyers to sin);
295. Dawn E. Johnsen, Faithfully Executing the Laws, 54 U.C.L.A. L. REV. 1559, 1584-85 (2007); Radack, supra note 47, at 14 (criticizing Bush administration lawyers and concluding that "[u]ltimately, the attorney must be guided by what his conscience tells him is in the public interest").
296. LUBAN, supra note 47, at 172; see also Michael Hatfield, Fear, Legal Indeterminacy, and the American Lawyering Culture, 10 LEWIS & CLARK L. REV. 511, 511 (2006) (arguing that Jay Bybee's memo was "at odds with both our national moral spirit and our law");
297. W. Bradley Wendel, Legal Ethics and the Separation of Law and Morals, 91 CORNELL L. REV. 67, 70 (2005) (arguing that "administration lawyers faced considerable pressure to think in a 'forward-leaning' way, on the assumption that the September 11th attacks had created a kind of normative watershed"). An element of self-interest in promotion to higher office may also have complemented this institutional zeal.
298. "Leaning," interestingly, is a central metaphor for lack of independence in Emerson's essay.
299. See MODEL RULES OF PROF'L CONDUCT R. 2.1 (1983); see also Peretz, supra note 206, at 38 ("Legal advisors to policymakers should not zealously advocate because it is unlikely that an equally zealous adversary will arise to oppose them. In a policymaking setting there is often no adversary to counterbalance the government attorney's advocacy with a contrary viewpoint that provides grist for the neutral third party (i.e. the policymaker) to weigh the arguments and discover the truth.").
300. MODEL RULES OF PROF'L CONDUCT R. 1.6 (1983).
301. This is the core of David Cole's position. See DAVID COLE & JAMES X. DEMPSEY, TERRORISM AND THE CONSTITUTION: SACRIFICING CIVIL LIBERTIES IN THE NAME OF NATIONAL SECURITY (2002); see also LUBAN, supra note 47, at 197 (stating that "crucial arguments in the torture memos are frivolous"); id. at 198 ("In the case of the torture memos, the giveaway is the violation of craft values common to all legal interpretive communities."); Johnsen, supra note 207, at 1584; Kutz, supra note 207, at 242 (arguing for criminal liability for lawyers who counseled torture);
302. Leila Nadya Sadat, Extraordinary Rendition, Torture, and Other Nightmares from the War on Terror, 75 GEO. WASH. L. REV. 1200, 1205 (2007) ("[Extraordinary rendition is not permissible under existing, applicable, and well-established norms of international human rights law and international humanitarian law. Renditions are carried out in secret, employ extra-legal means, and typically result in prisoner abuse, including cruel treatment, torture, and sometimes death."); Wendel, supra note 208, at 68 ("The overwhelming response by experts in criminal, international, constitutional, and military law was that the legal analysis in the government memos was so faulty that the lawyers' advice was incompetent."); id. at 70 ("[T]he process of providing legal advice was so badly flawed, and the lawyers working on the memos were so fixated on working around legal restrictions on the administration's actions, that the legal analysis became hopelessly distorted"); id. at 121 ("Rather than assisting the client to comply with the law, the government lawyers in this case simply abandoned the ideal of compliance altogether in favor of their own, custom-built legal system.").
303. See MODEL RULES OF PROF'L CONDUCT R. 1.2(d), 1.16(a)(1), 3.1 (1983).
304. Luban analogizes to lawyers for Enron and savings and loans in the 1980s. See LUBAN, supra note 47, at 201 ("When they write [cover your ass] memos, lawyers cross the fatal line from legal advisor to moral or legal accomplice."); see also Kathleen Clark, Ethical Issues Raised by the OLC Torture Memorandum, 1 J. NAT'L SECURITY L. & POL'Y 455, 458-63, 468-69 (2005).
305. For the original critique of the ideology of advocacy, see William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 WIS. L. REV. 29.
306. Gordon, supra note 3, at 14; see also ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993) (discussing the tradition of lawyer statesmanship);
307. WILLIAM H. SIMON, THE PRACTICE OF JUSTICE: A THEORY OF LAWYERS' ETHICS (1998).
308. Gordon, supra note 3, at 23; see also Richard B. Bilder & Detlev F. Vagts, Speaking Law to Power: Lawyers and Torture, in THE TORTURE DEBATE IN AMERICA, supra note 204, at 153 (discussing unique obligations of government lawyers "that go beyond those of private attorneys"); Peretz, supra note 206 (same);
309. cf. George C. Harris, The Rule of Law and the War on Terror: The Professional Responsibilities of Executive Branch Lawyers in the Wake of 9/11, 1 J. NAT'L SECURITY L. & POL'Y 409, 418, 431 (2005); Wendel, supra note 208, at 114-15 (describing the "special institutional role of lawyers as custodians of law and the role of law in pushing back against the energy of officials who seek to aggrandize the government's power").
310. Gordon, supra note 3, at 23 (1988); see also MODEL RULES OF PROF'L CONDUCT R. 1.16 (1983);
311. Peter Margulies, When to Push the Envelope: Legal Ethics, the Rule of Law, and National Security Strategy, 30 FORDHAM INT'L L.J. 642, 665 (2007) (arguing that while "[p]olicymakers at certain crucial junctures in U.S. history have defied the letter of the law to promote equality, dignity, and nonaggression," their actions, unlike the Bush administration's, were justified by "a purposive style of interpretation . . . premised on the goals served by constitutional or international law").
312. See supra note 192 and accompanying text. Compare Chief Justice Rehnquist's considerably more advocacy-oriented view when he served in the Office of Legal Counsel. Nominations of William H. Rehnquist and Lewis Powell, Jr.: Hearings Before the S. Comm. of the Judiciary, 92d Cong. 42, 185 (1971);
313. William H. Rehnquist, The Old Order Changeth: The Department of Justice Under John Mitchell, 12 ARIZ. L. REV. 251, 255 (1970).
314. Or they must help modify professional standards to include morally activist or purposive role obligations.
315. See Removing Politics, supra note 3, at 16, 41, 63, 74, 88, 154, 198 (insisting that character and integrity are the most basic check against misuse of the office and asserting lack of character and integrity as cause of lawyers' complicity in Watergate).
316. The recent record of oversight, for instance, is mixed. See Department of Justice Oversight: Hearing Before the S. Comm. on the Judiciary, 110th Cong. 5, 18, 53-60 (2007) (questioning Att'y Gen. Gonzales regarding torture);
317. Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?: Hearing Before the S. Comm. on the Judiciary, 110th Cong. (2007) (investigating the Gonzales firings); 153 Cong. Rec. S15227-01 (daily ed. Dec. 12, 2007) (statement of Sen. Patrick Leahy) (describing replacement of "two of the outstanding U.S. attorneys who were fired almost a year ago as part of the ill-advised, partisan plan to replace well-performing U.S. attorneys");
318. see also supra note 10 (Senate queries regarding Mukasey's independence and position on torture). Compare the above with Confirmation Hearing on the Nomination of John Ashcroft to Be Attorney General of the United States: Hearing Before the S. Comm. on the Judiciary, 107th Cong. (2001).
319. As David Luban concedes: The lawyers were political conservatives, mostly veterans of the Federalist Society and clerkships with Justices Scalia and Thomas, and Judge Laurence Silberman. Some sources . . . stated that their strategy was also shaped by longstanding political agendas that had relatively little to do with fighting terrorism, such as strengthening executive power and halting US submission to international law. LUBAN, supra note 47, at 172 n.28 (internal quotation marks omitted). More modestly, their prior political activities and affiliations may have predisposed them to respond favorably to the pressing new demands of the administration. See Cole, The Man Behind the Torture, supra note 204; cf. LUBAN, supra note 47, at 197 ("The evidence shows that all these memos were written under pressure from officials determined to use harsh tactics - officials who consciously bypassed ordinary channels and looked to lawyers sharing their aims."). For relevant academic positions taken by John Yoo, see Courts at War, 91 CORNELL L. REV. 573 (2006);
320. Transferring Terrorists, 79 NOTRE DAME L. REV. 1183 (2004);
321. Using Force, 71 U. CHI. L. REV. 729 (2004);
322. Applying the War Powers Resolution to the War on Terrorism, 6 GREEN BAG 2d 175 (2003);
323. Politics as Law?: The Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty Interpretation, 89 CAL. L. REV. 851 (2001);
324. UN Wars, US War Powers, 1 CHI. J. INT'L L. 355 (2000);
325. Clio at War: The Misuse of History in the War Powers Debate, 70 U. COLO. L. REV. 1169 (1999);
326. Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 COLUM. L. REV. 1955 (1999);
327. The First Claim: The Burr Trial, United States v. Nixon, and Presidential Power, 83 MINN. L. REV. 1435 (1999);
328. The New Sovereignty and the Old Constitution: The Chemical Weapons Convention and the Appointments Clause, 15 CONST. COMMENT. 87 (1998);
329. The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167 (1996);
330. see also JOHN YOO, WAR BY OTHER MEANS: AN INSIDER'S ACCOUNT OF THE WAR ON TERROR (2006);
331. YOO, THE POWERS OF WAR AND PEACE, supra note 204.
332. For Jay Bybee's academic positions, see Printz, The Unitary Executive, and the Fire in the Trash Can: Has Justice Scalia Picked the Court's Pocket?, 77 NOTRE DAME L. REV. 269 (2001);
333. Advising the President: Separation of Powers and the Federal Advisory Committee Act, 104 YALE L.J. 51 (1994).
334. Spaulding, The Rule of Law in Action: A Defense of Adversary System Values, 93 CORNELL L. REV. (forthcoming 2008).
335. Cf. ERIC A. POSNER & ADRIAN VERMEULE, TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS (2007);
336. Eric A. Posner & Adrian Vermeule, Accommodating Emergencies, 56 STAN. L. REV. 605 (2003);
337. see also Robert F. Turner, An Insider's Look at the War on Terrorism, 93 CORNELL L. REV. 471 (2008) (favorably reviewing JOHN YOO, WAR BY OTHER MEANS (2006)). I disagree with Posner and Vermeule's thesis as well as the apologia it offers for the Bush administration lawyers. I cite their scholarship only to indicate that there is not universal consensus on the frivolity of the positions the government lawyers took.
338. These are not the only examples one could give. See PETER IRONS, THE NEW DEAL LAWYERS (1982) (discussing the role of lawyers in the Roosevelt administration in overcoming constitutional objections to the New Deal); supra note 141 (discussing Jackson and Taney's removal of government deposits from the Second National Bank).
339. LUBAN, supra note 47, at 204.
340. Id.; cf. Sanford Levinson, In Quest of A "Common Conscience": Reflections on the Current Debate About Torture, 1 J. NAT'L SECURITY L. & POL'Y 231, 236-37 (2005) (noting that "[i]t is far too easy (and tempting) for liberal critics of the OLC memos to focus on John Yoo or Jay Bybee or Daniel Levin (the current head of OLC), rather than on, say, Senate Democrats who voted to support the relevant treaty conditions that have helped to cause so much consequent mischief).
341. Dan Eggen & Paul Kane, Senate Confirms Mukasey By 53-40, WASH. POST, Nov. 9, 2007, at A1 (noting that Mukasey "repeatedly refuse[d] to classify waterboarding, a simulated-drowning technique, as torture"; also noting that he received less congressional support in the final vote than any Justice Department leader in the past half-century);
342. Philip Shenon, Attorney General Choice Treads Careful Line at Senate Hearing, N.Y. TIMES, Oct. 18, 2007, at A1.
343. Eric Lichtblau, Senate Passes Bill to Expand U.S. Spying Powers, N.Y. TIMES, Feb. 12, 2008. The Supreme Court also now has before it a case regarding the rights of detainees at the Guantanamo Bay naval base to challenge their designation as enemy combatants. Boumediene v. Bush, No. 06-1195 (argued Dec. 5, 2007).
344. Cf. supra note 202 (discussing the Palmer raids and Watergate).
345. See Walter E. Dellinger et al., Principles to Guide the Office of Legal Counsel (2004), reprinted in Johnsen, supra note 207, app. 2. There is nothing natural or inevitable about the current structure. The organization of the office in England, for example, provides other structural alternatives.
346. See, e.g., J. EDWARDS, THE LAW OFFICERS OF THE CROWN (1964).
347. Removing Politics, supra note 3, at 61.
348. It is also the central lesson of Japanese internment during World War II. See PETER IRONS, JUSTICE AT WAR: THE STORY OF THE JAPANESE INTERNMENT CASES (1993) (detailing the role of government lawyers).
349. See, e.g., David Johnston & Scott Shane, Debate Erupts on Techniques Used by C.I.A., N.Y. TIMES, Oct. 5, 2007, at A1 (Senator John D. Rockefeller IV expressing exasperation that the oversight committee obtained more information from newspapers than from the Department of Justice on detention and torture policies);
350. Adam Liptak, U.S. Appeals Court Upholds Dismissal of Abuse Suit Against C.I.A., Saying Secrets Are at Risk, N.Y. TIMES, Mar. 3, 2007, at A6 (describing dismissal of kidnapping and abuse suit against CIA on grounds that lawsuit would expose state secrets); see also El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007), cert. denied, 128 S.Ct. 373 (2007);
351. cf. David Johnston, Bush Intervened in Dispute over N.S.A. Eavesdropping, N.Y. TIMES, May 16, 2007, at A1 (discussing former Deputy Attorney General James Comey's testimony before the Senate Judiciary Committee, revealing internal dissent over the administration's violation of FISA).