The U.S. Attorney Firings of 2006: Main Justice's Centralization Efforts in Historical Context (original) (raw)
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5 University of Pennsylvania Journal of Constitutional Law 558 606, 2003
Goodrich Professor of Law and Professor of Gove rnm e nt, College of William and Mal)'. Professor of Law, Be njamin N. Cardozo School of Law, Yeshiva University. Pre liminary versions of this an.i cle we re presented at faculty workshops at Cardozo, Vanderbilt, a nd Willia m and Mary law schoo ls. Thanks to participants at th ose workshops and to .Joel Mintz for he lpful comments. Thanks also to panicipanL~ at the Spa rer Co nference, especially Ed Rubin and Hal Krent, and to Mi che le Filorimo, Cardozo '04, t(.,r very he lpful research assistance.
The Creation of the Department of Justice: Professionalization Without Civil Rights or Civil Service
Stanford Law Review, 2014
This Article offers a new interpretation of the founding of the Department of Justice (DOJ) in 1870 as an effort to shrink and professionalize the federal government. The traditional view is that Congress created the DOJ to increase the federal government's capacity to litigate a growing docket due to the Civil War. More recent scholarship contends that Congress created the DOJ to enforce Reconstruction and ex-slaves' civil rights. However, it has been overlooked that the DOJ Act eliminated about one-third of federal legal staff. The founding of the DOJ had less to do with Reconstruction, and more to do with "retrenchment" (budget cutting and anti-patronage reform). The DOJ's creation was linked with major professionalization efforts, such as the founding of modern bar associations, to make the practice of law more exclusive and more independent from partisan politics. In this new interpretation, the DOJ's creation runs in the opposite
Resignations and Removals: A History of Federal Judicial Service. And Disservice. 1789-1992
University of Pennsylvania Law Review, 1993
Thomas Jefferson's dismay over the failed impeachment of Supreme Court Justice Samuel Chase in 1805 led him later to complain that "impeachment is not even a scarecrow." 1 Subsequent events have proven Jefferson wrong. Although the full panoply of the impeachment process has been used rarely, its existence has given Congress an impressively big stick to wield in persuading miscreant judges to leave the bench. 2 Since Jefferson's time, our experience has suggested two important conclusions about judicial discipline and removal. The first is that investigations, threats of investigations, and threats of impeachment can be very powerful tools in inducing judges to resign from office voluntarily. The second is that these tools have a great potential for misuse. Judicial independence is a core value supported by the constitutional structure of the federal judiciary. The appointment process, salary protection, and removal mechanism are all means to ensure that federal judges be independent and impartial in their decisiont Visiting Associate Professor, Widener University School of Law. This Article is dedicated to the memory of my brother, Dirck Van Tassel. An earlier version of this Article was prepared as a report to the National Commission onjudicial Discipline and Removal, while I was Associate Historian with the Federal judicial History Office of the Federal Judicial Center. The views and conclusions expressed in this Article are my own and do not necessarily represent the views of the FederalJudicial Center, which, on matters of policy, speaks only through its Board. I would like to thank Commission Chair Robert Kastenmeier and Commission Director Michael Remington as well as the Commission staff for their support and assistance during the preparation of the initial report and during the transformation of the report into this Article. I am grateful for the invaluable comments and unstinting support of Cynthia Harrison and Russell Wheeler, without whom this project could never have been undertaken. William Weller, Assistant Director of the National Commission, offered especially valuable support and assistance. James Diehm, Charlie Geyh, Robert Power, and David Van Tassel read various and in some cases multiple versions and made insightful suggestions. Exemplary research assistance was provided by Beverly Wirtz
“The day we see the truth and cease to speak is the day we begin to die.” -- Dr. Martin Luther King, Jr. Prepared remarks for U.S. Office of Special Counsel panel Whistleblower Summit, 340 House Cannon Office Building, July 31st, 2014 ... After a serious of phone calls from offices and pay phones that were not my own, the head of DoJ security agreed to meet with me, bringing in two FBI agents for the interview in his office and promising me that my confidentiality would be respected. Approximately two weeks later, even as security officials put the entire international program staff in lock down as they sought evidence of wrongdoing, I was also “outed” as a whistleblower to Criminal Division security staff figuratively in bed with the wrongdoers. It was then that I was told that my security clearance had "disappeared"—even though I had worked with classified information on a daily basis for the 19 months before it was mysteriously taken away. (Revocation requires a formal process, yet in the absence of any real protections for national security whistleblowers, the ability to circumvent that requirement is both easy and common for bureaucratic miscreants and their allies.) ... In the absence of any formal duties, and while I was being shunned for even polite conversation, I spent the time reading books about the history of the U.S. Civil War and biographies of George Washington. It made for an odd moment. My security clearance had "disappeared"--but the cluttered, unsecured room where I was being warehoused was at the same time being used to store what were called "burn boxes" full of classified and other sensitive information that was supposed to be destroyed. This farce was part of a libretto that was not meant to be believed, but rather to humiliate me—as the outed whistleblower—and, much more importantly, to warn others I worked with about the likely consequences for them if they came forward with what they knew about wrongdoing in the Criminal Division. (This is a phenomenon, by the way, repeated where I worked at National Defense University, where I was also a whistleblower.) ... The Justice Department IG did nothing to protect me and the other whistleblowers who came forward in the Criminal Division. However, that did not keep it from claiming credit before Congress for the positive contributions the whistleblowing did for tightening up the egregiously lax security at a division of Justice that considered itself the crown jewel of federal law enforcement. ... Even as the DoJ Inspectors General did nothing to try to help me (and, at times, the actions of their staff made me think that they were acting as Criminal Division’s own "plumbers" and enforcers against those who were willing to step forward), the Office of Special Counsel took its own mission very seriously. ...
The Consequences of DOJ Control of Litigation Authority on Agency Programs
52 Administrative Law Review 1345- …, 2000
be litigated and, if it decides to proceed, DOJ handles the lawyering. Legal academics and government lawyers alike take for granted that DOJ ought to speak the government's voice in court. Thus, while the literature is replete with discussions of the appropriate scope of agency independence from or control by other governmental actors, DOJ's monopoly over government litigation is unquestioned. DOJ's status is justified on the grounds that a single, highly talented •"law firm" will ensure quality representation, consiste•ncy, efficiency, and responsiveness to presidential preferences. This argument asserts the absolute necessity-for reasons of governmental integrity, effective litigation, and fairness-that the government speak with one voice in the courts, a consistency that can only be achieved by centralizing litigation authority. In addition, because the Attorney General sees the big picture-and sees it with the same eyes as the Presidentcentralization ensures that the lawyering is consistent with the broader policy concerns of the Administration. This perspective ensures that the parochial concerns of single-mission agencies do not take precedence over larger policy commitments, and that conflicts between agencies are appropriately resolved. Furthermore, from DOJ's standpoint, the litigator's expertise is litigation; DOJ lawyers have what agency lawyers may lack: courtroom skills and familiarity with recurrent non-agency-specific legal questions. These arguments should not be accepted uncritically. Our task in this article, however, is not to evaluate the claimed benefits of centralized litigating authority, but to consider a possible cost: the effect of such an arrangement on the agency's substantive program. Allowing DOJ to control agency litigation might have such an effect in three ways. First, and most obviously, it might reduce the scope and effectiveness of agency enforcement. Second, it might lead to avoidable courtroom losses-for example, setting aside a regulation-through which the judiciary creates obstacles to the agency's program. Third, it might encourage DOJ to adopt an aggressive stance toward its "client" agencies, directly influencing or interfering with the agencies' substantive decisions. Despite its general commitment to DOJ as the agencies' litigator, Congress occasionally has removed control of litigation from DOJ because of the foregoing concerns, in particular the first. In the extreme example, the litigator's role is taken out of the hands of government attorneys altogether. thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General."); 28 U.S.C. § 519 (1994) ("Except as otherwise authorized by law, the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of this title in the discharge of their respective duties.").
Change and Continuity in the Role of State Attorneys General in the Obama and Trump Administrations
Publius: The Journal of Federalism, 2018
During the Trump Administration, state attorneys general (AGs) have become entrenched as integral policymaking actors in the United States. Their expanding policymaking role fits broader patterns of polarized politics, as partisan coalitions of AGs are increasingly willing to sue the federal government, a trend that gathered steam in the Obama Administration and has reached a crescendo in Trump's first year. However, state AGs do cooperate, particularly in corporate litigation to address allegedly widespread, illegal behavior. Utilizing a comprehensive dataset of multi-state lawsuits and Supreme Court amicus briefs, we identify continuity and change in how AGs have employed their powers, by examining their activities during the first year of the Trump presidency and placing these activities in the context of previous administrations. This analysis is accompanied by a pair of case studies, one on conflictual AG environmental litigation and another on bipartisan efforts to address the opioid epidemic, that demonstrate AG's prominent policymaking power, a power unlikely to abate anytime soon.