The Department of Justice

Announcer: Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor. N. Rodgers: Hey, Aughie. J. Aughenbaugh: Good morning, Nia. How are you? N. Rodgers: I'm excellent. How are you? J. Aughenbaugh: I'm good. Important, I'm good because listeners, we are once again continuing our series on the departments that comprise the cabinet of the US federal government. N. Rodgers: Today we're going to talk about the Department of Justice. I want to tell you what cool thing I know about the Department of Justice. J. Aughenbaugh: What's that cool thing? N. Rodgers: I want to say that the plural is attorneys general not attorney generals. I'm going to tell you that it took me until I was about 15 to get that right. Listeners, the reason I would even have heard of the Attorney General when I was young was Iran-Contra was going on during my youth and Watergate had been too early in my youth to remember, but it did get referenced back whenever bad things would happen in government. We have a tendency to go back to the last really big bad thing that happened and say, look, it's just like that. History is repeating itself even though none of these are actually repeats, they are new bad things that we create. Anyway, it is attorneys general. There are more than just the one, although the one is the one we often talk about, which is the Department of Justice. J. Aughenbaugh: That's right. My knowledge of the correct way to say, the plural comes from the fact that I had a good friend in my doctoral program who looked at how, in many states, attorneys general can write or provide advisory opinions. N. Rodgers: Happens a lot in Virginia. J. Aughenbaugh: Yeah. Because in the Virginia Constitution, any executive branch official or state legislator can ask the attorney general to provide an advisory opinion. Because this is a power or function that multiple state attorneys general. Because the first time I heard that expression, it struck me as odd. N. Rodgers: It is. Because you would think that the plural would be at the end an in most English. Most of the time when we pluralize something, we say dogs, cats, birds, we pluralize the end word even if it's pretty dogs, we don't say pretty dog. J. Aughenbaugh: But in this particular instance, and I even asked my friend, my colleague, Kevin Long, who did his dissertation on this subject and I said, "Why is it not attorney generals?" He goes, "Because the emphasis in terms of that position is the attorney part." N. Rodgers: I guess if they had reversed it and called them general attorneys it would mean something different. When they say attorney general, they're essentially giving it a rank. J. Aughenbaugh: That's right. N. Rodgers: General being almost a military. It's not a military rank, but almost a military rank in the sense of this is a higher attorney than other attorneys in hierarchy of attorneys. I have to say that the attorneys general are a fascinating group of people. The ones that I remember in my lifetime have all had big P personalities except the current one. Merrick Garland, who by the way has the best first name error ever, Merrick. Merrick Garland is a bowl of tapioca pudding. He's the most benign substance on the planet. I like that about him because he's not particularly controversial. We've had some that were flaming in your face controversial, they just [inaudible] prisoners. I think you're going to mention some of those. J. Aughenbaugh: Yes. Okay. N. Rodgers: But Merrick Garland, bless his heart, could not fire people up if his life depended on, he's just not that. J. Aughenbaugh: In many ways he is a throwback to what the position was and who occupied it earlier in our country's history. N. Rodgers: Very measured opinions. But I wanted to say something about that. You mentioned something about opinions and the Attorney General of Virginia, and I suspect the attorneys general of all of the places that have attorneys general, is that you said that anybody could ask for their opinion on something. Governor Juan could go to the attorney general and he could say, "I want to know what the legal implications of x thing are." That person would sit down and research it and then write or the staff would research and maybe write an opinion and give it to him. He does not go on his personal business. I want to know if I'm going to get sued personally for doing x thing. The attorney general is not the president's lawyer. The attorney general is the country's lawyer. He's our lawyer in the sense of all of us. J. Aughenbaugh: Remember, he is the equivalent of the secretary of, for instance, defense or the secretary of the Treasury, which is, he is in charge of a unit that in the hierarchy of the US federal government is underneath the president. But in terms of enforcing the law, it's just like the secretary of the Interior has to enforce various laws related to the nation's wildlife. N. Rodgers: The secretary of the Interior is not going to cut down trees on the White House lawn. J. Aughenbaugh: No. N. Rodgers: Because the president is like, I want to get rid of that tree, call the Secretary of the Interior. That's not that person's job. Similarly, I want to sue a guy. That's not the attorney general's job. There is a person who has that job and it's not them. Sorry. Anyway, I was like, oh, wait, I wonder if you could get the secretary of the Interior to cut down trees on the White House lawn would be amazing. It would be terrifying because most of them are bureaucrats and would be terrible at it, they would. J. Aughenbaugh: You imagine them throwing up. N. Rodgers: You can do that, but I need to have the surgeon general standing by in case we have a medical emergency. The attorney general is in charge, you said, of an agency where he's in charge of or rather a department he's in charge of the Department of Justice. J. Aughenbaugh: That's correct. N. Rodgers: The DOJs, as we're going to refer to it now for the rest of the podcast. J. Aughenbaugh: The Department of Justice was not created until 1870. N. Rodgers: We get an attorney general way before that. J. Aughenbaugh: In fact, yes. The attorney general position was created by the Judiciary Act of 1789 and for our faithful podcast episodes, that law might sound familiar because that was one of the laws in question in the infamous Supreme Court case, Marbury versus Madison. Because that was the law that gave the Supreme Court original jurisdiction to hear writs of mandamus. N. Rodgers: Or as we'd like to think of it, ultimate cosmic power. J. Aughenbaugh: Yes. But the Judiciary Act of 1789 basically created the US government's judicial system. It was Congress's first effort to do that. They went ahead and created this position of Attorney General. Initially, the Attorney General, knowly gave legal advice to the executive branch. The Attorney General well into the 18 teams was asked by Congress to give it legal advice. N. Rodgers: But according to your notes, the Attorney General's job was part-time. J. Aughenbaugh: Yeah. N. Rodgers: They didn't expect a lot of work. Either they just thought, if we say it, it must be legal or they thought they knew or didn't need advice. That's fascinating to me. Congress and the president are going to share a lawyer, but they're only going to share a lawyer part-time. J. Aughenbaugh: Well, it really reflected the fact that perhaps first two generations of elected officials in the United States all thought that they were experts on the meaning of the constitution and law. N. Rodgers: That's changed in what way? J. Aughenbaugh: But it sounds like hubris. N. Rodgers: It does. J. Aughenbaugh: It sounds like arrogance. But remember, there is a clause in the US Constitution where all federal officers swear an oath to uphold the constitution. They're thinking was, if we're going to swear an oath to the constitution we have read and interpreted so why do we need a lawyer unless the new country gets into situations that were not covered or contemplated by the US Constitution or any of the laws created by the first roughly 5, 10 United States Congresses. N. Rodgers: That's where you see also the importance that comes up at the Supreme Court is when you get arguments between people in the government saying, oh it means this, and the other side says, no, it means this and somebody's got to settle that. J. Aughenbaugh: That's right. N. Rodgers: I do think it's interesting that the early Attorneys General didn't get paid very much. They kept their own private law practices. I love that they're like, I'd love to advise you, Mr. President, but right now I do in court, so I'll catch you tomorrow. Now that would never happen because when Merrick Garland sees on the phone, the phone number for the White House, when you get the thing under your phone. He answers. What do we need? What's going on? The president calls you, you answer and I like how back then it was like, yeah, I'm going to get to that, but it's probably not going to be till Thursday because I've got stuff to do. Wait, what? That's the president of the United States. It's interesting to me, but it's because they didn't pay him anything. Or very little. J. Aughenbaugh: Well, compared to the other cabinet secretaries at that time, it wasn't a full-time position. They didn't receive as much pay. If you were a prominent attorney, at least back then, there wasn't a lot of specialization. Even among prominent attorneys. Most prominent attorneys, or roughly the first century the United States or general practitioners. N. Rodgers: I'm handling a divorce then I'm handling a bill of sale. J. Aughenbaugh: A railroad wants to go ahead and buy some land. N. Rodgers: I'm doing a contract and I got to call the president back. I don't know, where does that fit in? That's all interesting to me. I would love to hear the president call he'd like for you to call him back, except they of course, didn't have telephones. The president sent a message and he would like for you to come to the White House. J. Aughenbaugh: Before you send the messenger back, you respond on the sheet of paper with sorry, I have a private relegation conference. I'll stop by tomorrow afternoon. N. Rodgers: Exactly. I love the idea of it. J. Aughenbaugh: I found this in my research and I put it in the research notes. Abraham Lincoln's Attorney General was Edward Bates. Edward Bates actually ran for the Republican nomination for president, much like the other three or four members of the Lincoln cabinet. N. Rodgers: Just to give dates on this, this is 1861-1864, which means this is prior to the Department of Justice being formed. J. Aughenbaugh: That's right. N. Rodgers: This is still madooed by himself part-time. J. Aughenbaugh: I found that's in my research, so I put in the research notes. I was just blown away by this. Bates as Attorney General had a staff of six. He was supposed to be on hand to provide legal opinions to Lincoln and the rest of the cabinet. But Lincoln and the rest of the cabinet were all experienced lawyers. They never asked for his opinion. Moreover, Bates wasn't in charge of the US attorneys. The US attorneys were appointed by presidents. Us attorneys thought their boss and rightfully so, was the president. N. Rodgers: Was the guy who hired you? J. Aughenbaugh: Yeah, that's right. The federal court system wasn't managed by Attorney General Bates. It was actually managed by the Interior Department. N. Rodgers: Wow. J. Aughenbaugh: We haven't covered interior. That's going to be an upcoming episode. But the Interior Department in many ways was like the Treasury Department. If Congress wasn't entirely clear where to put a new agency or bureau, the two likely suspects were either the Treasury Department or Interior. N. Rodgers: Because we didn't have commerce yet. J. Aughenbaugh: Right. We didn't have the Commerce Department speaking of Treasury. Anytime somebody filed a claim against the federal government, it was handled by the Treasury Department. N. Rodgers: A financial claim, you mean? J. Aughenbaugh: Yeah. I did work for this agency in the federal government. N. Rodgers: Oh, they never paid me or they owe this much for my land because they're putting something more. J. Aughenbaugh: The federal government did X and it ruined my farm, who's going to pay me? N. Rodgers: The money part went through treasury? J. Aughenbaugh: Treasury had more attorneys than the Attorney Generals office N. Rodgers: Than the Attorney general. That's awesome. Well, you say in your notes that dates also because he was a cabinet member, could have given commentary, but he didn't bother. J. Aughenbaugh: No, he didn't bother. Because again, the President had already been set by previous Attorneys General that unless they really need me, I'm not really all that important. N. Rodgers: I just want to give you all a visual on that. Lincoln's going around the table and he's like civil war, no civil war, yes or no, up or down vote and he gets to the attorney general, the attorney general is like whatever. J. Aughenbaugh: Well think about this way. N. Rodgers: I guess if you had been dist all along, if you had been treated as if your opinions didn't matter, then probably after a while, you would just say, it doesn't matter. It doesn't matter what I say because, in someway that makes me feel bad for Mr. Bates. J. Aughenbaugh: Well, in some really huge constitutional decisions were made. Lincoln unilaterally suspending the writ of habeas corpus. N. Rodgers: You'd think he'd ask an attorney general if that was a good idea or not. J. Aughenbaugh: Lincoln instituting a blockade of Southern Port. Lincoln never asked for Bate's opinion. He just went ahead and turn to his cabinet and said, well, should I do this or not. Bates was just one of a handful of legal opinions. This is mind-blowing today. N. Rodgers: The thing is that a huge number of our presidents have been trained as lawyers. J. Aughenbaugh: Yes. N. Rodgers: My guess is that what we have after the evolution of the creation of the Justice Department and then stronger attorneys general is that they start saying things to the president like, you are not the attorney for the nation. I am the attorney for the nation. It's my job to investigate this. I have a staff who's going to come through the laws of whatever it is and make sure that we're on the up and up before we do a thing. But until then for Mr. Bates, I don't think that's a good idea. I'm sorry. I can't hear you over the sound of everybody else saying yes so we're just going to do it. J. Aughenbaugh: After the Civil War ends and there were a myriad of legal and constitutional issues that arose almost immediately with reconstruction, the United States Congress passed a bill and President Grant signed the bill into law in June of 1870 and our first Attorney General has, I believe, one of your most favorite names were crossed and doing this podcast. N. Rodgers: I love this name, Amos T. Akerman. Which is known as Amos T. Akerman. The T stands for Tappan and if you are from the New York area, there is a Tappan Zee River and there is a Tappan Zee Bridge that if you asked New Yorker, is still called the Tappan Zee Bridge and if you ask anyone else's called the Mario Cuomo bridge. I say that because people who are long native of New York don't like the changing of names of things like that. Not that they don't like Mr. Cuomo, but they liked the name of the Tappan Zee Bridge the way it was. But Amos T. Akerman was our attorney general and Benjamin H. Bristow, which is another name that I like, was our first Solicitor General. J. Aughenbaugh: At this point listeners, it's probably good to differentiate the two positions. N. Rodgers: I was about to ask you, what is the difference between these two things Aughie? They're both generals. J. Aughenbaugh: That is true. N. Rodgers: One is an attorney, and one is a solicitor which I believe isn't solicitor just British for attorney. J. Aughenbaugh: Typically, yeah. But the thinking of the United States Congress was the Attorney General would be the administrator of the Justice Department. But that there should be a designated person who would represent the federal government in court, and that would be the Solicitor General. In fact, that's basically what that position, and now let's be very clear. It's an office. We've had some really well-known Solicitor General's in the history of the United States, whose primary job is to argue or represent the federal government in federal court, particularly the United States Supreme Court. N. Rodgers: Are they automatically admitted to the Supreme Court Bar or do they have to apply? J. Aughenbaugh: No. They are typically automatically admitted once they are confirmed by the Senate. But to give you an example of some of the more prominent Solicitor Generals, Robert Jackson, who eventually becomes a justice of the Supreme Court. Thurgood Marshall at one time was Solicitor General. Elena Kagan, who is a current Supreme Court Justice. That's a very prominent position. By the way, John Roberts, the current Chief Justice, was never the Solicitor General, but he worked in the Solicitor General's office and argued multiple cases in front of the Supreme Court. N. Rodgers: Let me make sure that I understand. Basically, the Attorney General is an administrator? J. Aughenbaugh: Yes. N. Rodgers: The Solicitor General goes to court. You often probably would not find the Attorney General in court. J. Aughenbaugh: That's correct. N. Rodgers: Okay. Only on, I assume very rare circumstances. J. Aughenbaugh: Very rare circumstances. N. Rodgers: Both of these people are trained as attorneys. They have met the bar somewhere in the United States. I know this is going to sound like a stupid question. Bear with me. Is there a federal bar or do they take the bar in whatever state they live in? J. Aughenbaugh: It's the latter, not the former. N. Rodgers: Okay. J. Aughenbaugh: Yeah. It's the latter, not the former. N. Rodgers: There's not a special test for an attorney general? We have passed the bar in New York, Virginia wherever they've live. J. Aughenbaugh: We've had US Attorney's General. Their background was contract to commercial law or they worked on law street. But a good way to think about the US Attorney General once the Justice Department was created, was in large part, it became the chief administrator of the "Justice Department." But what does that mean? But almost immediately, the Justice Department's focus in the 1870s were the enforcement of laws to implement the 13th, 14th, and 15th Amendments. The Justice Department moved into "law enforcement," what we would refer to as enforcing federal law. You saw this, for instance, where the Justice Department used the civil rights laws passed in the 1880s to go after the KKK and other similar groups that were targeting former slaves in the South. Also, it was during this period of time that you saw the Justice Department take control over the prison system. N. Rodgers: I was going to ask you, so modernly speaking, the Department of Justice is in charge of a whole bunch of stuff. They in charge of the Marshal Service, they are in charge of the FBI, all these things report. Was that gradually added or as we figured out, we need a department to do this, we need a department to do that and they're all justice related. We'll put those under justice. Is that how that sort of? J. Aughenbaugh: No. It happened gradually. There was no master plan here. For instance, if you look at the organization of the Justice Department today, you have the Attorney General, you have the Associate Attorney General, and then you have the Solicitor General. Excuse me, I even forgot one, we have the Deputy Attorney General. N. Rodgers: The Attorney General, the Deputy, the associated, so there's lots of generals. J. Aughenbaugh: Lots of generals. But then we have divisions. Within the big Justice Department building in Washington DC and it's a huge building, you have the Anti-trust Division, which was created in 1933. N. Rodgers: Is that the robber baron era? Is that why we get Antitrust Division around in 1933? J. Aughenbaugh: There are actually a lot of robber generals where in the mid to late 1800s. We get the Sherman Anti-Trust Act in the late 1800s. It actually took the United States Congress nearly 40 years to create an Antitrust Division within the Justice Department. N. Rodgers: To start really super reinforcing that, it took 40 years. J. Aughenbaugh: You got the Civil Division, which used to be the division that handled all claims made against the US federal government. N. Rodgers: That's in part because we have two courts in the nation. We have criminal courts and we have civil courts. J. Aughenbaugh: Which is right. N. Rodgers: In civil courts is where you seek redress financially. For the most part, that's what civil court is. You have harmed me in some way I want you to pay financially, whereas criminal court is you've broken the law and I want you to pay with your time and your person. That's why it's called Civil Division. J. Aughenbaugh: Civil Rights Division wasn't created until the Truman administration. The Criminal Division was actually created in 1919. We have an Environmental and Natural Resources Division, which arose in the late 1960s. It gets its current name in 1990. We have the Justice Management Division. That's basically the administration of the federal government's justice system that was created in '45. We get a National Security Division and near this probably did not surprise you. It was created post 911 attacks. The Tax Division was created in 1933. N. Rodgers: Same as the Anti-trust. It starts off with Anti-trust and tax. Starts of money. J. Aughenbaugh: Yes. N. Rodgers: Then works its way into other things. But each one of those years that you mentioned are seminal years in terms of Civil Rights Division 1957. That starts to make sense because you're getting brown V, and you're getting all the other civil rights acts. J. Aughenbaugh: That's right. N. Rodgers: Then in the 1960s we noticed Silent Spring. We notice Rachel Carson, we notice the environment was going all the hell in a handcart. Now you get a division created for that. The Tax Division in 1933. Isn't that around the time when you start to get? J. Aughenbaugh: Prohibition was repealed and the federal government began to go ahead and look for alternative, if you will, revenue sources because the Great Depression harmed the nation's income. N. Rodgers: In 1933, around that time is when you get an income tax? In the 1930s? J. Aughenbaugh: No. The income tax occurred in the 19-teens. N. Rodgers: Teens. Thank you. J. Aughenbaugh: In the 19-teens. But the federal government recognized and it took the federal government basically throughout the decade of the 1920s to recognize, well, if people aren't buying and selling booze, we're not getting tax revenue from it. N. Rodgers: If they're doing it on the black market, we're especially not getting tax revenue from it. J. Aughenbaugh: But then the Great Depression hits and with the exception of the wealthiest Americans. A whole bunch of Americans all of a sudden saw their incomes dry up. You need a Tax Division to go after people who aren't doing what? N. Rodgers: Who aren't paying their taxes. Because we need to have some way to have other social safety network which we can only have. What I think is interesting is we have generals, then we have divisions, and then we have units. J. Aughenbaugh: We have units. N. Rodgers: If that sounds like the military to anybody, it's because that's how the military is divided up. J. Aughenbaugh: Yes. N. Rodgers: It's interesting that the Department of Justice. J. Aughenbaugh: Is similarly or organized. N. Rodgers: Hierarchically. It brings to mind military. J. Aughenbaugh: By the way, the units, US Marshal Service. It did not become part of the Justice Department until 1969. N. Rodgers: Wow. That doesn't make any sense. J. Aughenbaugh: FBI. Well, that was actually created in the early part of the 20th century, but 1935 is when you get the name. N. Rodgers: Under which Attorney General? J. Aughenbaugh: Oh, this is another great name. N. Rodgers: Yes. J. Aughenbaugh: Another great name, George W. Wickersham. N. Rodgers: His previous Attorney General, Charles Bonaparte. We have such boring names compared to, you don't. Because Eigen Boss is a pretty cool name. But yes, Attorney General Wickersham. It sounds like a Victorian villain. Doesn't it? He would be in some Sherlock Holmes novel. I see what you've done. J. Aughenbaugh: What I was going to say was, that has to be a British mystery comedy movie. N. Rodgers: Or that. Exactly. J. Aughenbaugh: I already mentioned this previously, Federal Bureau of Prisons used to be part of the interior department. I loved the law that created the Federal Bureau of Prisons, the three prisons Act of 1891. N. Rodgers: Were there only three? J. Aughenbaugh: Yeah, because you had Leavenworth, you had the one for women, in West Virginia, and then they went ahead and created a third one, so they called it the three president's Act. N. Rodgers: Can you imagine a time when we only had three prisons? J. Aughenbaugh: Yeah. N. Rodgers: That's amazing. In 1991, we only needed three prisons. J. Aughenbaugh: It really demonstrates the significant growth of the federal government, and in particular, the number of federal laws. The reason why you need more prisons is once we start getting more federal laws and we arrest more people for violating federal law, we got to house them someplace. N. Rodgers: You get into that whole, was it Eisenhower who warned about the military industrial complex? Also should've mentioned the prison industrial complex which is a whole separate issue which we will talk about on another episode. J. Aughenbaugh: The Bureau of alcohol, tobacco, firearms, and explosives. N. Rodgers: ATF. J. Aughenbaugh: Yes. We removed the explosives part. N. Rodgers: I was going to ask you about that. Do we not worry about explosives anymore or they're just not that common? J. Aughenbaugh: It's not that common, but back then, one of the most effective way is to go in and express your displeasure with the US government. N. Rodgers: Was to blow stuff up. Well, and I guess when you think about early on in the history of blowing things up, back in the day, dynamites were relatively easy to come by. J. Aughenbaugh: Oh, goodness gracious, yeah. N. Rodgers: Railroads had it, lots of people had. Less thing now to just pop down to laws and get a stick of dynamite. J. Aughenbaugh: Well, Nia I remember this. N. Rodgers: For which I am grateful by the way, in case anybody's wondering. J. Aughenbaugh: So am I. I remember when my great grandfather died when I was 13 and we were cleaning out his basement. He had sticks of dynamite. N. Rodgers: See that's so terrifying. J. Aughenbaugh: Because he was an old coal miner. They used dynamite to go ahead, and when they encountered a new section of mountain that they wanted to mine. N. Rodgers: Kaboom. J. Aughenbaugh: He was "an explosives expert," I was just like, what's this grandma? My grandma was like, put that down. N. Rodgers: I'm sure she was thinking, do not do anything with it. Although when a stick of dynamite is separate from its fuse, I think it's relatively benign. That's one of the things about dynamite is it's not like some of the other stuff. J. Aughenbaugh: There are two more things I want to cover in our discussion of the Justice Department. First, as you pointed out, Nia, at the beginning of this podcast episode, we've had some rather prominent people who have been the Attorney General of the United States. Our first one was Edmund Randolph. Our listeners from Virginia, if that name sounds familiar. Well, he was one of the framers, he was the first US Attorney General. He was one of the delegates to the constitutional convention, though, interestingly enough, he refused to sign it. N. Rodgers: I'm not signing that thing. J. Aughenbaugh: He's a former governor of Virginia, so as is the want of Virginia historically, if you come across some building road, school that's named Randolph. He's the one. N. Rodgers: Randolph Macon? J. Aughenbaugh: Yes. But we've had others. John Breckinridge was appointed by Thomas Jefferson. N. Rodgers: Several of them have gone on to serve on the Supreme Court. J. Aughenbaugh: Yeah. N. Rodgers: Several of the attorneys general have gone on. J. Aughenbaugh: Roger Taney. N. Rodgers: You mentioned a bunch of Solicitor Generals that have ended up. That's Elena Kagan and Thurgood Marshall. J. Aughenbaugh: Thurgood Marshall, yeah. N. Rodgers: But several of the Attorneys General have also ended up on the Supreme Court. J. Aughenbaugh: Yes. Roger Taney, who was Chief Justice appointed by Andrew Jackson, and he authored the infamous Dred Scott decision. A justice who we talked about in a previous podcast episode about Supreme Court Justices and their relationships on the court. N. Rodgers: Right. J. Aughenbaugh: The infamous James Mic Reynolds. He was one of the four Supreme Court justices who disliked FDR's new deal, and he was known for his extreme form of antisemitism. N. Rodgers: Is he the one that wouldn't sit in a photograph? J. Aughenbaugh: Yes. N. Rodgers: Because he didn't want to sit in a photograph with Jews. Dude seriously. J. Aughenbaugh: Remember, Nia, here's the Supreme Court Justice that when he died, N. Rodgers: Nobody came, that's right. J. Aughenbaugh: None of the Justices came to his funeral. N. Rodgers: That's right. We pass. It's pretty harsh when people who've worked with you for a long time are like, yeah, no, I don't care that you're dead, or good riddance. J. Aughenbaugh: Harlan Fiske Stone who was appointed attorney general by President Harding, he served on the Supreme Court and he was promoted by FDR to serve as Chief Justice after Chief Justice Charles Evans Hughes. The aforementioned Robert Jackson, Tom Clark was Truman's attorney general. I think his first one. Tom Clark's, interesting because Truman thought when he appointed Clark to the Supreme Court that Tom Clark would basically go ahead and vote in favor of anything that Truman did as president. N. Rodgers: It turns out. J. Aughenbaugh: He had a streak of independence when he got on the court. N. Rodgers: Good for him. J. Aughenbaugh: Leaving Truman at one point to say that Clark had, how did he refer to it? He went ahead and said he was as spineless as a banana. N. Rodgers: That's a little harsh. J. Aughenbaugh: Bananas even when their unripe, can be squished. N. Rodgers: Yes. J. Aughenbaugh: Tom Clark is also interesting because Tom Clark's son was picked to be Attorney General by LBJ. According to many historians, LBJ picked Tom Clark's son, Ramsey. That's another good name. N. Rodgers: Ramsey Clark. J. Aughenbaugh: Yeah, Ramsey Clark. N. Rodgers: That sounds like something out of a Harlequin novel. The dashing hero, Ramsey Clark? J. Aughenbaugh: Yes. According to historians and this is a really good example of how Machiavellian LBJ was as president. N. Rodgers: Like we need another example. J. Aughenbaugh: Example, LBJ wanted to nominate Thurgood Marshall to the Supreme Court and LBJ wanted to do so for a number of reasons. He thought an African-American deserved to be on the court. But LBJ wanted to be the president to do it. He wanted that to be part of his legacy. N. Rodgers: Yeah, he had very strong feelings about. J. Aughenbaugh: But he didn't have a vacancy. How do you create a vacancy on the Supreme Court? N. Rodgers: Well, if you're LBJ, you could conceivably murder somebody or have them murdered. I should say, he would never do it himself. He would have somebody do it. J. Aughenbaugh: LBJ nominates Ramsey Clark to be attorney general, which then put Tom Clark, who was a Supreme Court justice into a conflict of interest spot. Because officially, pretty much every argument that the federal government would make in front of the Supreme Court. N. Rodgers: He can, he has to recuse himself because. J. Aughenbaugh: He would have to recuse himself. N. Rodgers: That's his son and he might be biased. J. Aughenbaugh: Yes. That's how he got rid of him. N. Rodgers: That's so LBJ, wow. Tom's forced to resign, which opens up a magical spot? Look Megan slide Thurgood Marshall. That was not a [inaudible] There's only one real case of nepotism in terms of this thing that we can point out and that's Robert Kennedy. JFK appointed Robert Kennedy to be his attorney general because he's his brother, and he wants to be protected. He wants Robert to look out for his interests. But we're not in any way suggesting that Thurgood Marshall was not one, a brilliant attorney, and two well-qualified to be on the Supreme Court. J. Aughenbaugh: But other [inaudible]. N. Rodgers: I love that that's an LBJ. If I move this chess piece and this chess piece, then this chess piece has to do this thing and then I get what I want. That said, he was brilliant. J. Aughenbaugh: That wasn't the first time he did that thing. He wanted to put his friend [inaudible] on the Supreme Court. But again, he didn't have a vacancy. What he did was he went to one of the justices, Arthur Goldberg, who he knew was chomping at the bit with the monastery existence on the court, and offered to Goldberg the position of US Ambassador to the United Nations. He promised Goldberg, that Goldberg would have an influential role in shaping the country's foreign affairs policy. Which again if you, N. Rodgers: He had only minimal intention of following throughout. He already had a plan. J. Aughenbaugh: LBJ basically followed his own mutes. N. Rodgers: But, you get to have any influence. I'll actually listen to what you say before I make the decision, I was going to make it anyway. J. Aughenbaugh: But other prominent attorney generals, Janet Reno was the first female attorney general. Alberto Gonzales, appointed by Bush 43 was the first Hispanic attorney General. Eric Holder, appointed by Obama, first African-American attorney general. Although Loretta Lynch, also appointed by Obama, first African-American female and our current. N. Rodgers: Wait, before you get to our current and lovely Merrick Garland, can we give a special shout-out to Elliott Richardson? J. Aughenbaugh: Yes. N. Rodgers: Because Elliott Richardson is beloved by you and Bill Newman for the very sole reason that he refused. Not just for that reason he was also a great administrator and he served his country in a lot of different ways. Because right, he served in three or four different positions in charge of things. But he refused to fire the Watergate special prosecutor. J. Aughenbaugh: That's right. N. Rodgers: Nixon called him in and said, "You're going to fire these people?" He said, "No, sir, I'm not." J. Aughenbaugh: Nixon's first attorney general was John Mitchell. John Mitchell resigned for a number of reasons. But Nixon was told, you need a squeaky clean attorney general. N. Rodgers: You can't get any squeakier than Elliott Richardson. J. Aughenbaugh: Then the Nixon administration gets pressure to appoint a special prosecutor to examine what role or connection the White House had to the break-in at the Watergate complex. N. Rodgers: Who is that? J. Aughenbaugh: Archibald Cox. N. Rodgers: Thank you. J. Aughenbaugh: Who was a very well-known law professor at Harvard. N. Rodgers: He starts to actually do the job. J. Aughenbaugh: Do the job and Cox finds out that Nixon like most presidents of the 20th century, had been taping conversations in the Oval Office. Cox wants the tapes. Nixon was like, I'm not giving that special prosecutor the tapes, he needs to be fired. He calls up Elliott Richardson and says, I want you to terminate the special prosecutor and Elliott Richardson is like, No. Nixon says, either you resign or I fire you. Elliott Richardson says, "I understand Mr. President." N. Rodgers: It was lovely working for you. Goodbye. J. Aughenbaugh: I am ignoring an order coming from the President of the United States. N. Rodgers: Then we get Merrick Garland, who one we love his name, but also Merrick Garland for our younger listeners who may not know this. Merrick Garland was previously nominated to the Supreme Court, but did not receive a hearing. Because the GOP controlled Senate said, we're going to have an election at the end of the year, we are going to wait until there's a new president. Because frankly they did not want a Democrat nominating. What's irritating about that to me is Merrick Garland is so benign and neutral, he's not super Democrat, he would have been a good choice for them. J. Aughenbaugh: Nia, you've heard me say this before. If I was a Republican senator when Justice Scalia died, and I knew a Democratic president would get to nominate his successor. I would have been hard-pressed to find a candidate as moderate as Merrick Garland to replace Scalia. Now, truth be told. Would Merrick Garland have been a more liberal Supreme Court Justice than Scalia? N. Rodgers: Of course. J. Aughenbaugh: But in regards to who Obama could have nominated, Merrick Garland. N. Rodgers: He went out and found the most benign person that should have been able to get buy-in from both sides. J. Aughenbaugh: He was overqualified. N. Rodgers: I shouldn't keep saying benign, I should say moderate because you're right. J. Aughenbaugh: He was a moderate liberal. If you would have placed him on an ideological spectrum of the Supreme Court at that time. He would have been basically to the right, slightly more conservative than Justice Breyer. Justice Breyer when he was on the court, was not the most liberal justice on the court. N. Rodgers: He would have been way to the right of Ruth Bader Ginsburg. J. Aughenbaugh: Ginsburg or, Sonia Sotomayor. Merrick Garland at the time he was nominated for the seat on the Supreme Court, was the Chief Judge of the DC Circuit Court of Appeals. N. Rodgers: That was a pure political play of, we are going to deny this president an opportunity to sit a justice. J. Aughenbaugh: But since his appointment as attorney general by President Biden, to show Nia how politicized the Justice Department has become in this country. Merrick Garland is getting it from both ends. Liberals have complained that he's not doing his job because he's not indicted or brought charges against former President Trump and Trump's role in the January 6th riots. Conservatives have complained that Merrick Garland is not protecting the justices of the Supreme Court in lieu of their rulings from last spring. Conservatives are now complaining that Merrick Garland personally signed off on the search warrant of President Trump's private residents in Florida, for apparently or allegedly, the former president took a whole bunch of classified documents with him when he left the White House. He's getting it from both ends. N. Rodgers: I would say alleged except that President Trump said, I took them, they were mine. I unclassified them. Doesn't technically work that way, sir. But that's a whole thing that will be litigating. The reason he's catching it from both sides is because he is more moderate. No side loves him because he's not on their side clearly. Was there something else you want to touch on before we? J. Aughenbaugh: Those were the two thought. N. Rodgers: Can I say that I like it when they get a crusade. I like it that Bobby Kennedy was, I'm going after unions. I like that the civil rights and the voting rights aggressively going after places that aren't allowing people to vote properly. J. Aughenbaugh: Again, this really does reflect how the Justice Department also reflects changes in our country. The Justice Department is now just not your standard law enforcement. There are so many federal laws today, Nia, that whoever is the attorney general basically has discretion as to what gets emphasized in regards to the enforcement of laws. N. Rodgers: Eric Holder saying, I'm just not going after people for weed. I got other stuff to do. Have you noticed the world is on fire. I got other stuff to do. As the president put it in his press conferences. J. Aughenbaugh: We got bigger fish to fry. N. Rodgers: We got bigger fish to fry. I appreciate that. J. Aughenbaugh: Nixon encouraging his first attorney general, John Mitchell to prosecute who were protesters. Which was completely within his authority. N. Rodgers: Right. Frankly, scared him a little. J. Aughenbaugh: Sure. N. Rodgers: I think it scared him a little bit that he thought that those folks might set fire to things, that it might become a revolution in some way, and he was worried about that. It's interesting when they take on or don't take on certain things. Because President Trump regularly wanted his enemies prosecutors/persecuted in some way, and the attorney generals who worked for him would say, sir, we can't do that. We can't make this personal. Sure, we can't. No, we can't. Because that's not how our office works. This has been fun and exciting. Thank you, Aughie. J. Aughenbaugh: Nia, as you well know, and I think listeners you probably picked up. I spent a lot of time studying and looking at what the Justice Department does because so many of my classes deal with the law, and in particular the federal government making arguments in federal court. I'm going to really watch with fascination the evolution of the Justice Department over the years. N. Rodgers: This is a culmination of administrative law. This is where the rubber meets the road. J. Aughenbaugh: Meets the road. To me it's just thoroughly fascinating. Nia, you brought this up a number of times. We went from an attorney general position that was part-time and got paid less than the other cabinet secretaries to now there's big sprawling agency with so much power. N. Rodgers: For some presidents not enough power, but we can't get into that right now. It's been a great evolution. Thank you. We will be back to talk about the next department, next week. J. Aughenbaugh: Thanks, Nia. Bye. N. Rodgers: Bye. 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