ATTORNEY GENERAL

ATTORNEY GENERAL

The chief law enforcement officer of the United States or of a state government, typically serving in an EXECUTIVE BRANCH position. The individual represents the government in litigation and serves as the principal advisor to government officials
and agencies in legal matters.
The attorney general is head of the U.S. JUS-
TICE DEPARTMENT and chief law officer of the
federal government. He or she represents the
United States in legal matters generally and gives
advice and opinions to the president and to
other heads of executive departments as
requested. In cases of exceptional gravity or special importance, the attorney general may appear in person before the U.S. Supreme Court to represent the interests of the government.
As head of the Justice Department, the attor-
ney general is charged with enforcing federal
laws, furnishing legal counsel in federal cases,
construing the laws under which other executive
departments act, supervising federal penal insti-
tutions, and investigating violations of federal
laws. The attorney general also supervises and
directs the activities of the U.S. attorneys and
U.S. MARSHALS in the various judicial districts.
(U.S. attorneys prosecute all offenses against the
United States and prosecute or defend for the
government all civil actions, suits, or proceed-
ings in which the United States is concerned;
U.S. marshals execute all lawful writs, processes,
and orders issued under authority of the United
States.)

The office of the attorney general was cre-
ated by the First Congress in the JUDICIARY ACT
OF 1789 (An Act to Establish the Judicial Courts
of the United States, ch. 20, § 35, 1 Stat. 73,
92–93). The First Congress did not expect the
attorney general—a part-time employee with
scant pay, no staff, and little power—to play a
major role in the emerging federal government.
As the members of the First Congress estab-
lished a system for the enforcement of federal
laws, their primary concern was to protect state
and individual freedoms and to avoid the cre-
ation of a central legal system that would allow
the tyrannies they had experienced as American
colonists under George III. Therefore, the Judi-
ciary Act gave the attorney general just two prin-
cipal duties: (1) to prosecute and conduct all
suits in the SUPREME COURT OF THE UNITED
STATES that concerned the United States and
(2) to give an opinion on QUESTIONS OF LAW
when asked to do so by the president or heads of
other executive departments.
The early attorneys general spent little time
arguing before the Supreme Court because few
cases had traveled through the nation’s develop-
ing court system and even fewer warranted
Supreme Court review. Together, the first three
attorneys general—Edmund Randolph, WIL-
LIAM BRADFORD, and Charles Lee—represented
the United States in the Supreme Court only six
times in their collective years in office.
Furthermore, early attorneys general were
specifically restricted by the Judiciary Act from
participating in lower-court actions. District attorneys (known in the early 2000s as U.S. attorneys) held the authority to represent the
United States in district and circuit courts. Each
district attorney could independently decide
which cases to pursue and on what grounds—a
situation that soon resulted in a number of contradictory
legal positions for the federal government.
Because the attorney general had no
power to direct district attorneys in their lowercourt
litigation, the officeholder was often
unaware of litigation that concerned the interests
of the United States.
In a letter to President GEORGE WASHINGTON
dated December 26, 1791,Attorney General
Randolph expressed concern about the limitations
of his office and complained specifically
about the lack of a defined relationship with the
district attorneys. Randolph was the first of
many attorneys general to point out that their
prescribed duties did not allow them to fully
look after the interests of the United States, and
he was the first to propose an expansion of the
office’s duties and jurisdiction.
Ignoring complaints and proposals, Congress
remained reluctant to expand the duties of
the attorney general and often passed legislation
that assigned special legal functions to officials
in other government departments. For example,
in the early 1800s, Congress created a solicitor of
the treasury to handle all suits for the recovery
of money or property in the United States—a
move that further complicated the attorney general’s
efforts to fully look after the interests of
the government.
With court appearances limited by the lack
of both cases before the Supreme Court and
jurisdiction to oversee lower-court cases, opinion
writing consumed most of the time of early
attorneys general. Together, Attorneys General
Randolph, Bradford, and Lee wrote more than
40 formal opinions on such diverse issues as
IMMUNITY for diplomats, applications for
PATENTS, and the choice of directors for the
nation’s first federal bank. However, early attorneys
general were not required to provide the
government with written records of their opinions.
When WILLIAM WIRT, the eleventh attorney
general, took office in 1817, he found that
his predecessors had provided no record of their
past opinions to guide his deliberations. Understandably,
early attorneys general, who received
only a small stipend for their services and relied
on the private PRACTICE OF LAW for their personal
income, spent little money to hire clerks to
transcribe and preserve their work. They simply
relied on the recipients of their opinions to
retain them for future reference. Still, legislative
attempts to provide the attorney general with an
office, a clerk, and supplies continually failed to
win support.
The limited duties outlined for the attorney
general by the First Congress, along with the
lack of perquisites for the office, made it hard for
presidents to attract qualified appointees and
keep them in office. Even President Washington
had difficulty convincing his personal attorney
and long-time friend, Randolph, to take the job.
Washington finally won Randolph over by
pointing out that service as attorney general
might enhance his earning opportunities in private
practice. In fact, Randolph did not profit
much from the prestige of the office during or
after his tenure. Subsequent attorneys general
did profit handsomely from the experience, but
early officeholders often had difficulty BALANCING
the dual commitments to private practice
and public service.
The commitment to public service for early
attorneys general was further complicated by
institutional tensions between the executive, legislative,
and judicial branches of government,
which all claimed the officeholder’s time, services,
and allegiance. It has been said that the
attorney general serves “three masters”: the president,
the Congress, and the courts (American
Enterprise Institute for Public Policy Research
1968). Although the attorney general advises the
president, the basic authority of the office is derived from Congress and the functions of the
office are subject to congressional control. In
addition, the attorney general is a member of
the bar and therefore an officer of the court subject
to the directives of the judicial branch.
Although the First Congress defined the
relationship between the attorney general and
the president, it did not define the relationship
between the attorney general and Congress. And
it was notably silent regarding who was ultimately
to decide when and whether the interests
of the United States were “concerned”: nothing
in the Judiciary Act of 1789 specified who
should control the attorney general or to whom
she or he should report. Early attorneys general
took orders from the Congress as well as from
the president and the heads of other executive
departments.Attorneys general were often asked
to deliver opinions to Congress on legislative
proposals, and they came to be viewed as
authorities on constitutional issues—much to
the chagrin of both legislators, who frequently
disagreed with their interpretations, and members
of the judiciary, who assumed that they
themselves were the final arbiters in constitutional
matters.
The attorney general has also been said to
straddle the legal and political worlds. When
Congress created the executive departments, it
did not specify who should or should not be
members of the president’s cabinet, and it could
not predict the level of influence held by any one
individual. In the early years, the attorney general
did not have cabinet rank but served as
counsel to those who did. However, as Washington’s
personal legal adviser, Randolph participated
in cabinet meetings as early as 1792,
establishing the precedent for attorneys general
to have a hand in making policy as well as in
interpreting and enforcing the laws. The attorney
general’s role in policy making soon brought
into question the extent to which party lines and
presidential preferences influenced his or her
legal advice. Over time, some attorneys general
handled the dilemma with more integrity and
less partisanship than others.
The lack of centralized authority and the
lack of basic institutional support for the office
of the attorney general began to be remedied by
Congress in the early nineteenth century. Subsequently,
many of the issues caused or influenced
by conflicting allegiances were dissolved or clarified
through administrative policy and legislation.
In 1814, during the term of Attorney General
RICHARD RUSH, President JAMES MADISON
made the first move to expand formally the
presence (if not the duties) of the attorney general,
by proposing a requirement that the attorney
general reside in or near Washington, D.C.,
while Congress was in session. The residency
requirement had previously been resisted by
some attorneys general. Although it made the
officeholder available to the president and Congress
when the attorney general was most
needed, it also made the private practice of law
more inconvenient to an attorney general who
lived far from the Capitol.
Attorney General Wirt (1817–29), under
Presidents JAMES MONROE and JOHN QUINCY
ADAMS, was the first to comprehend fully the
officeholder’s need for administrative structure.
During his tenure, the attorney general was
finally given government office space, a transcribing
clerk, and a small fund for office supplies.
The practice of providing opinions to
Congress was also curtailed during this period,
when Wirt presented a paper to President Monroe
outlining the extent of his congressional
workload and his objections.Wirt told the president
that opinions had been provided to Congress
in the past as a courtesy—not as a MATTER
OF LAW. Wirt told the president the practice
would not continue unless Congress revised the
law and made it mandatory.
By 1853, when CALEB CUSHING became
attorney general under President FRANKLIN
PIERCE, the officeholder had four clerks and—
for the first time—a salary comparable to those
of other cabinet officers. Also in 1853, Cushing
decided it was no longer appropriate to continue
the private practice of law while in office.He was
the nation’s first full-time attorney general.
Recommendations that a department of law
be created by Congress were discussed as early as
1830 and were championed by numerous presidents
and attorneys general. A department of
justice was first suggested in 1851 by Alex H. H.
Stuart, secretary of the newly established
DEPARTMENT OF THE INTERIOR.
No action was taken by Congress until February
25, 1870, when the Joint Committee on
Retrenchments (appointed to find ways of
reducing government expenditures) drafted a
bill to consolidate legal functions and create a
department of justice. The bill was made into
law four months later, and the Justice Department
officially came into existence on July 1, 1870 (An Act to Establish the Department of
Justice, §17, 16 Stat. 162 [June 22, 1870]).
The June 22, 1870, law created a new position,
that of SOLICITOR GENERAL, whose holder
is in charge of representing the government in
suits and appeals in the Supreme Court and in
lower federal trial and appellate courts, in cases
involving the interests of the United States. The
law also provided for two assistant attorneys
general. It gave the attorney general complete
direction and control of the U.S. attorneys and
all other counsel employed on behalf of the
United States. And it finally gave the attorney
general supervisory powers over the accounts of
district attorneys, marshals, clerks, and other
officers of the court involved in federal matters.
The first attorney general to head the new
department was AMOS T. AKERMAN, of Georgia,
appointed by President ULYSSES S. GRANT in
1870. So, 81 years after the creation of the office
of the attorney general, the nation finally had a
full-fledged organization to administer and
enforce its laws. Evolution in the position of
attorney general culminated in the formation of
the Justice Department.
In the late twentieth and early twenty-first
centuries, U.S. attorneys general, including
JANET RENO and JOHN DAVID ASHCROFT, have
been at the center of extensive media attention.
Reno, for example, was the subject of intense
scrutiny for her role in the deaths of about 80
members of the Branch Davidians, an armed
religious sect, near Waco, Texas in 1993. The
deaths occurred when the FEDERAL BUREAU OF
INVESTIGATION, following a long standoff, set
fire to the group’s compound during an
attempted raid. Reno later took responsibility
for the FBI actions. Subsequently, Reno was
involved in the return to Cuba of a refugee child
named Elian Gonzalez in April 2000. Reno
ordered officers of the Immigration and Naturalization
Service to raid the home of the child’s
relatives in Miami in order to return the child to
his father, who remained in Cuba. Ashcroft, a
former U.S. senator and governor of Missouri,
was at the center of attention throughout the
investigation of terrorists following the SEPTEMBER
11TH ATTACKS on the United States.
The growth of the office of the attorney general
from a part-time, one-person operation
into a vast and complex law enforcement organization
is an inseparable part of the story of the
United States and the development of its institutions.
As the role of government has expanded,
so too has the role of the nation’s attorney general.
Moreover, though the attorney general’s
role continues to grow and evolve, the basic
duties of the office and the structure of its supporting
organization have been in place since
the Civil War.
State Attorneys General
State attorneys general possess many of the
same powers and responsibilities as their counterpart
in the federal government. A state attorney
general’s office is typically a part of the
executive branch of the state government. He or
she is generally entrusted with the duties of prosecuting
suits and proceedings involving state
government and advising the governor and other
administrative officers of the state government.
Many state statutes also establish the state attorney
general as the official legal advisor or representative
of various departments and agencies.
In some states, the power of the attorney
general is limited to those specified by statute.
The powers of most attorneys general are subject
to the desires of the legislature, although
powers in some states are prescribed by statute.
In fulfilling the advisory function of the office,
attorneys general are often requested to draft
ADVISORY OPINIONS related to the application
of the law to a particular agency or official.
These opinions are generally not considered
binding on the general public, though in some
instances they may be binding upon the officials
that request them.

FURTHER READINGS
American Enterprise Institute for Public Policy Research.
1968. Roles of the Attorney General. Washington: D.C.:
American Enterprise Institute for Public Policy
Research.
Baker, Nancy V. 1985. Conflicting Loyalties: Law and Politics
in the Attorney General’s Office, 1789–1990. Lawrence:
Univ. Press of Kansas.
Justice Department. 1990. 200th Anniversary of the Office of
Attorney General, 1789–1989. Washington, D.C.: Justice
Department.
Powell, H. Jefferson. 2002. A Community Built on Needs: The
Constitution in History and Politics. Chicago, Univ. of
Chicago Press.

CROSS-REFERENCES
Justice Department; Officers of the Court; Supreme Court of
the United States; Question of Law;Washington, George.