American history is riddled with presidential attempts to smash the independence of the Department of Justice.
When Congress created the position of attorney general in 1789, it was a part-time gig. The salary lagged well behind other executive positions, and lacked congressional appropriations for office space and supplies. The idea that the occupant could serve as the president’s personal fixer would have seemed absurd at the time. It no longer seems so absurd. This week, Attorney General William Barr was accused of going “rogue” by House Speaker Nancy Pelosi, who opened an impeachment proceeding against President Donald Trump in the wake of the Department of Justice’s decision against releasing a whistle-blower’s complaint to Congress. At the heart of the controversy is a phone call between the president and Ukrainian President Volodymyr Zelenskiy that focused on former Vice President Joe Biden and his son, Hunter Biden. “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the attorney general would be great,” Trump said. The Justice Department declined to investigate the allegations even after Michael Atkinson, the inspector general of the intelligence community, elevated it to a matter of “urgent concern.” The department said Barr was not involved in that decision, and added that he never spoke to the president about Biden’s ties to Ukraine. Still, critics are sounding alarms about Barr failing to protect the department’s storied independence from the president and its responsibility to uphold the rule of law. Attorneys general have been held to that standard for years – and for good reason. Nevertheless, Barr’s predecessors have managed to build up quite a record of cronyism over the years. As with so many flaws in America’s system of government, this one goes back to its founding. Back then, there was no “Department of Justice,” and the attorney general floated between the three branches of government. “I am a sort of mongrel between the State and the U.S.; called an officer of some rank under the latter, yet thrust out to get a livelihood in the former,” said Edmund Randolph, the nation’s first top lawyer. Because the position was independent and impotent, the men who filled the position were rarely corrupt or political. In an in-depth analysis, Fordham University legal scholar Jed Shugerman found that most of nineteenth-century appointees tended to be professional lawyers, not political hacks.
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