For just the second time...
The United States will have a president serve two non-consecutive terms. What does history teach us about the enforcement of federal law during such a situation?
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
In the Southern District of New York, three people were charged with plotting to kill Donald Trump and other targets prior to the 2024 election. The plot involved an Iranian agent and two recruits. The recruits conducted surveillance and discussed potential assassination plans.
In the Southern District of Mississippi, several county officials, including the District Attorney, were charged with accepting bribes and other offenses arising from their acceptance of payments from undercover FBI agents. The FBI agents posed as real estate developers.
In the Middle District of Florida, a man was indicted for posting various threats on the Internet. His threats focused on three individuals, the child of one individual and Jewish and African-American people generally.
The Lessons of Grover Cleveland
With his election as President last week, Donald Trump became the second person to serve as president for two non-consecutive terms. The first was Grover Cleveland who served as the 22nd president from 1885-1889 and as the 24th president from 1893-1897. Notably, he was the only Democrat to serve as president from 1860 to 1912. Cleveland’s second term looked different than his first. Much like what is expected from the incoming Trump administration, Cleveland’s cabinet selections differed between the two presidencies. Cleveland’s Attorney General selections and the work performed by his Attorneys General might provide some insight into the future Trump selections.
During the 1884 election, Cleveland won as a fusion candidate. During the late 19th century, party identification was important but was not preclusive. Within each party existed factions who followed policy choices more than party allegiance. Cleveland, though a Democrat, secured support from more liberal Republicans (keeping in mind that what constituted liberal and conservative in the 1880s is different from today!). His top priority, upon winning office, at least as it related to administration, was to prioritize merit over patronage in his appointments. High performing Republicans would remain in their posts. This coincided with a limited role for the federal government, both domestically and internationally.
Cleveland named Augustus Garland as his first Attorney General. Though Cleveland claimed to want meritorious choices, his choice of Garland indicated a more political intent. Garland had served as both the Governor of Arkansas and, at the time of his selection as Attorney General, one of its US Senators. During the Civil War, Garland had served as a member of the first Confederate Congress. Prior to serving in these political positions, Garland had established a reputation as one of the top attorneys in Arkansas. During this time he also identified with the Whig Party and the Know-Nothings. Both parties were populist and anti-Catholic. Yet he also opposed seccession from the Union and worked to ease the transition back to Union membership. His work led to treason charges after the war but President Andrew Johnson pardoned him. Garland also refused to take a loyalty oath, an act required for former Confederate officials who wanted to practice law in the federal courts. He took his fight to the US Supreme Court and prevailed, claiming the law was both an ex post facto law and a bill of attainder. A Democrat, Garland gave his support to a Republican governor opposed to Reconstruction. Through these experiences, Garland established a strong political reputation as a conciliator with conservative views and as someone with an expansive political network.
As Attorney General, Garland faced multiple scandals. While a Senator, Garland purchased stock in a growing telephone company that hoped to use their connections with the new Attorney General to challenge Bell Telephone’s patents on new telephone technology. Garland refused to bring the suit, suprising the new phone company. The company then turned to a Tennessee United States Attorney to solicit Garland’s intervention. Still Garland refused. While on a hunting trip, the United States Solicitor General brought the case in an Ohio federal court. The matter resulted in a Congressional investigation that exonerated all involved although the vote fell along party lines. Later, Garland would become the first, and still only, cabinet member to be censured by Congress. Garland refused to provide Congress documents related to his firing of a United States Attorney. Despite these scandals, Cleveland countined supporting Garland, who remained in the role throughout Cleveland’s first presidency.
When Cleveland began his second term, he appointed Richard Olney, a relatively unknown Massachussetts attorney, to be Attorney General. Olney could not have been more different than Garland. Olney had limited political experience, preferring the pursuit of his legal career over a political career. This led Olney to view his role as a Presidential advisor and service as the President’s attorney. In fact, Olney left much of the daily legal work to the Solicitor General and the Assistant Attorneys General. Olney focused on advising the President. In this role, Olney proved to be a strong supporter of the railroads against the workers. To preserver mail delivery and other communications, Olney instructed United States Attorneys to challenge the Pullman Railroad Strike in the ealry 1890s. As part of these efforts, Olney oversaw the first prosecution of labor leader Eugene Debs for contempt of court when Debs ignored court orders prohibiting the railroad strike. Olney did not remain Attorney General long as Cleveland moved him to Secretary of State when Cleveland’s incumbent died in office.
To replace Olney, Cleveland selected Judson Harmon. Like Olney, Harmon came from a legal background, having never held public office other than a short term as a municipal judge. Cleveland sent Harmon a letter asking him to serve as Attorney General and offered that Harmon could maintain his private practice if he accepted. After consulting his wife and his law partner, Harmon accepted. Harmon had advised Cleveland on other Ohio appointments and shared Cleveland’s conservative economic policy. Upon entering office, Harmon’s most pressing work involved antitrust prosecutions. Olney had done little to advance cases begun during the Harrison interregnum between Cleveland’s presidencies. Harmon endeavored to advance them but doubted their success. He pointed to defects in the law and the strict interpretation given to the law by the courts. Undeterred, Harmon pursued one case to the US Supreme Court, an effort that provided a roadmap for the McKinley and Roosevelt Administrations antitrust efforts. Harmon also devoted attention to Cuban affairs. Armed groups left the United States to help liberate Cuba from Spanish rule. The U.S. Government prevented as many as possible through criminal prosecution. To do this, Harmon developed a strong working relationship with the U.S. Attorneys. When William McKinley became President, Harmon resigned his post and, after more years in private law practice, would become Ohio’s governor.
Cleveland’s Attorneys General differed from his first to second term. Garland was a political figure. Although Cleveland supported Garland through scandal, it appears that Cleveland preferred to have more experienced legal advice and work during his second term. Both Olney and Harmon were political unknowns who had strong legal reputations. They, like Garland, however, shared Cleveland’s conservative views and supported Cleveland’s conservative policies.
In his first term, President Trump initially opted for a political figure as Attorney General, selecting Alabama Senator Jeff Sessions. Like Garland, Sessions soon became embroiled in controversey. Unlike Cleveland, however, Trump did not support Sessions. Ultimately, Trump replaced Sessions with a more professional and ideologically similar Attorney General, Bill Barr. Barr, like Olney and Harmon, supported Trump’s conservative agenda. This worked until Barr proved “disloyal” when he refused to support Trump’s efforts to overturn the 2020 election.
As we await Donald Trump’s choice for his third Attorney General, it is likely that Trump will follow Cleveland’s example. The choice will not be a well-known political figure. Instead, Trump is likely to choose an ideological conservative willing to follow Trump’s policy choices. Hopefully, this person will, like Harmon, brings a sense of professionalism to the position.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!