“When you get to the White House there are two jobs you must lock up – Attorney General and director of the Internal Revenue Service.”
–Joe Kennedy, Sr. to John F. Kennedy, perhaps apocryphally. (Joe Sr. had been involved with organized crime during Prohibition. Sound familiar?)
I am posting this draft paper early, before having a chance to work through all the footnotes and the normative structural proposal. But I think this paper is suddenly more relevant right now: There is a long history of crony and corrupt appointments as Attorney General in American history. It’s time for structural reform of the DOJ:
Walter Dellinger was quoted Saturday in the New York Times:
“Whatever the right answer to the particular ethical and legal issues might be, we should not lose sight of the larger question of whether this is an effort to undermine the system of justice,” said Walter E. Dellinger III, who served as acting solicitor general in the Clinton administration.
Mr. Trump is not the first president to appoint an ally with thin credentials to run the Justice Department: John F. Kennedy picked his brother, Robert. Nor is it unusual to staff government agencies with officials who bring vested interests to the job. But Mr. Dellinger said there was no precedent for installing a political crony as attorney general at the very moment that he could decide the fate of a federal investigation involving the president.
My paper suggests that this is not correct, depending on a broad interpretation of a “very moment.” Nixon appointed Richard Kleindienst as AG after the Watergate break-in was already being investigated and prosecuted. John Kennedy appointed his brother Robert Kennedy, who had become famous for prosecuting organized crime… but never investigated Joe Sr.’s organized crime past. (Reagan had his crony Meese during Iran Contra, but Reagan had appointed him before the conspiracy was exposed.)
Matthew Whitaker is an egregious appointment in violation of the Constitution and the relevant statutes, as I have argued here on this blog. However, crony attorneys general are common in the 20th century. Both parties have eroded the norm of DOJ independence steadily. It is overdue for Congress to pass legislation to make limit the president’s power to pick a crony/hack/insider Attorney General like Sessions or Whitaker. Or the many campaign managers or partisans chosen by presidents of both parties. Or a brother crony like Robert Kennedy. It is overdue for Congress to create structures of agency independence within the Department of Justice, like the Office of Legal Counsel. This paper offers an incomplete rebuttal to Justice Scalia’s originalist assertions about prosecutors in his Morrison v. Olsen dissent. Those arguments would support the constitutionality of such statutes insulating the Department of Justice now.
 Larry Tye, Bobby Kennedy 458 n. 133 (2016) (citing John P. Roche, “The Second Coming of R.F.K.,” National Review, July 22, 1988, p. 34.
Here is the paper in a Google Doc link.
Here is the paper’s introduction:
The office of United States Attorney General has often been identified as “quasi-judicial” or having “quasi-judicial” aspects for much of American history. Other parts of the Department of Justice 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 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, 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 Attorney General reveals a surprising pattern: The nineteenth century had relatively few cronyist 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 had grown enormously. This shift was remarkably bipartisan, starting under President Woodrow Wilson, a Democrat, and then immediately after under President Warren G. Harding, a Republican. Perhaps this turn in the late 1910s started an era of partisan escalation as each party pushed the norms as they rotated into power. This paper suggests that these trends have contributed to making the DOJ partisan and allowing some presidents to imagine the attorney general’s office as the president’s personal lawyer and fixer. In just over half of the past century, the office of attorney general has been filled by a partisan insider.
This research offered a number of patterns that I found especially surprising. First, nineteenth-century America is known for the rise of the patronage party system. Formal professionalization – especially legal professionalization – emerges somewhat late in the nineteenth century. Nevertheless, there are relatively few crony or patronage attorneys general in an era of patronage without professionalization or recently-emerging professionalization. Second, the Progressive Era (roughly 1900 to 1920) is thought of as an era of reforming the partisan machine, of anti-patronage, of anti-corruption. And yet, the rise of the crony or partisan campaign insider AG begins in the Progressive Era under President Woodrow Wilson, and escalates from there, including in the Roosevelt administration, which was also perceived as being a shift to administrative expertise, the “brain trust,” or at least a team of established politicos. The third surprise is just how bipartisan the cronyism of the Attorney General has been in the twentieth century. Democrats accounted for more of the partisan-insiderism of the mid-twentieth century, though the party balance has shifted towards the Republicans decisively since the Nixon/Reagan era. (See colored chart at p. 3-5). The nepotism of the Kennedy administration with brother/protector Bobby and the corruption of the Nixon administration are most famous to modern observers, but the origins go further back to a time perceived to be more progressive and professional.
In Part I, this paper presents an overview of that pattern, using the rough categories of “professional,” “politico,” and “insider” or crony. [Feedback on these labels is welcome.] I will focus more on the turning point during the Progressive Era: Wilson’s Attorney General A. Mitchell Palmer and Harding’s Attorney General Harry Daugherty. This focus will highlight how that rise of cronyism contributed to the abuses and corruption under those two attorneys general. Part II offers a historical critique of the unitary executive theory on prosecution, exemplified in Justice Scalia’s dissent in Morrison v. Olson, a position that would prevent many structural reforms. That position turns out to be incorrect in its historical assumptions. Part III offers some preliminary suggestions for structural reform of the Attorney General’s office and other parts of the DOJ, borrowing from the independent agency model, while remaining consistent with Article II’s Take Care and Vesting clauses. The breakdown of the norms of prosecutorial independence from partisanship is not a new phenomenon. It is a century in the making. The solutions borrow from some models that have grown elsewhere in the executive branch over that same century.
 See Caleb Cushing, A Report of the Attorney General, Suggesting Modifications in the Manner of Conducting the Legal Business of the Government: Message from the President of the United States, H.R. Exec. Doc. No. 33-95, at 6 (1854). See also Caleb Cushing, Office and Duties of the Attorney General, 6 Op. Att’y Gen. 326, 334 (1854). Cushing also noted that Congress established the office of Attorney General “in organizing the judicial business of the United States.”
 The attorneys general who became Supreme Court justices: Roger Taney, Nathan Clifford, Joseph McKenna, William Moody, James McReynolds, Harlan Fiske Stone, Frank Murphy, Robert Jackson, and Tom Clark.
 These include Edmund Randolph, William Wirt, Caleb Cushing, Evarts, Hoar, Homer Cummings (1933-39), William Rogers, Elliot Richardson,
 Shugerman, The Creation of the Department of Justice: Professionalization Without Civil Rights or Civil Service, Stan. L. Rev. (2014)