Personnel and Politics at Justice
Project 2025's Justice Department plan for the next conservative administration features inserting people who support the administration's agenda. Has this type of change occurred before?
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Justice in Brief
In the Western District of Tennessee, a woman was charged with mail fraud and aggravated identity theft in connection with a scheme to take ownership of Elvis Presley’s home, Graceland. The woman falsely claimed Presley’s daughter had taken out a loan against Graceland and never repaid it.
In the Middle District of Georgia, a man belonging to the National Constitutional Militia was sentenced for being a felon in possession of a firearm. He was part of a plan that aimed to kidnap several federal employees on Thanksgiving Day, 2022.
In the Western District of Texas, a Bulgarian man was charged with attempting to obtain radiation-hardened integrated circuits for export to Russia without first obtaining the appropriate license. The man and others planned to obtain the circuits and ship them to Russia through a Bulgarian company.
Personnel politics of federal prosecutors
The last two full issues have reviewed Project 2025’s plans for the Justice Department for the “next conservative administration.” This often repeated phrase in the document emphasizes the plan’s ideological nature. Successful implementation will require people willing to execute the agenda. According to the plan’s author, Gene Hamilton, during the Trump administration, the career prosecutors undermined the president’s agenda. Replacing these people with people supporting the next conservative administration’s agenda is essential. This is likely to alarm many people. Some may call this unprecedented. For better or worse, it is not. In fact, it used to be pretty common.
Federal prosecutors originated with the 1789 Judiciary Act. The nation’s first President, George Washington, selected the first thirteen United States Attorneys. Washington did not know all of his appointments personally and relied upon recommendations from others. From those recommendations, he chose only people who supported the Constitution. While this may sound odd today, this was a major political division at the time. By choosing only people who had a record of supporting the Constitution, Washington sent a political message.
As Washington’s presidency unfolded, support for the Constitution became more widespread but interpreting the Constitution exposed competing political ideologies. One faction, led by Alexander Hamilton, favored a broad and expansive constitutional interpretation. The second faction, led by Thomas Jefferson and James Madison, preferred a more constrained interpretation. Their division led to bitter policy disputes and partisan divides.
When Thomas Jefferson assumed the presidency in 1801 as the nation’s third president, he was the first from his policy perspective. In the months before his inauguration, Jefferson watched as Congress passed a new Judiciary Act that created lots of new judgeships and federal prosecutors. Jefferson’s predecessor and political rival, John Adams, raced to fill those slots with people sympathetic to Adams’ views. This greatly offended Jefferson, who believed the appointments were unconstitutional. While he could not do anything about most of the judgeships as they had life tenure, he could act on the federal prosecutors. Jefferson rescinded many of Adams’ nominations. He also replaced Richard Harison, the United States Attorney for New York, whom Jefferson labeled a “violent federalist.”
Harison’s replacement established a precedent that remains until today. When the party holding the presidency changes, the United States Attorneys resign their position or allow their term to expire. This permits the new party assuming the presidency to place their people into United States Attorney positions.
In the nation’s first century, this often meant that those appointed had more political connections than prosecutorial experience. In 1828, when Andrew Jackson won the presidency, he appointed James Hamilton—Alexander Hamilton’s son— as United States Attorney for the Southern District of New York. Years later, when Hamilton wrote his autobiography, he acknowledged that before beginning his work, he had to learn the law associated with criminal prosecution and customs collection. Hamilton had obtained his position based upon his relationship with Jackson.
By the late 19th century, the routine had become entrenched. In 1888, the first post-Civil War Democrat President, Grover Cleveland, lost his re-election bid to Benjamin Harrison. Cleveland’s United States Attorney for the Southern District of New York, Stephen Walker, resigned his post. When asked why, Walker responded that the Republicans had “bought the offices and paid for them” so they could do whatever they wanted with the offices. Harrison appointed Edward Mitchell, a Republican and former New York Assembly member, as United States Attorney. Mitchell’s main accomplishment as United States Attorney was serving on a committee dedicated to building a monument to former President Ulysses Grant.
The 20th century expanded the practice to assistant United States Attorneys. In 1925, when Republican Emory Buckner became United States Attorney, he faced a personnel issue. Party Republicans wanted their people to fill the assistant US Attorney positions within the office. Buckner, though a Republican, preferred quality attorneys. He struck a deal with party leaders. Buckner could hire whom he liked but he would require that they join the Republican party. While not performing political tasks, the requirement would grow the party rolls.
This lasted until 1932 when Franklin Roosevelt won the first of his four terms as President. Harry Truman’s victory in 1948 meant that Democrats held the presidency for 20 years. When Dwight Eisenhower won the presidency as a Republican, he appointed former Buckner Assistant US Attorney Edward Lumbard as United States Attorney. Lumbard found “political considerations” had played a significant role in hiring assistants and requested all assistant US Attorneys in the Southern District of New York resign. This allowed Lumbard to appoint Republicans to these posts.
Regularly replacing the assistants lasted until the 1980s when the Justice Department gave assistants something akin to civil service protections. This was done to provide more stability and experience among the federal prosecutors who regularly appeared in court. It also allowed more continuity between administrations.
One side effect of this change was that United States Attorneys lost some control over their offices. They became administrators more than litigators. Assistants would inform them of the major cases or controversial matters, but career assistants made the day-to-day decisions.
Gene Hamilton’s plan for the Justice Department in 2025, should a conservative administration gain the White House, is to return to the time when the whole office turned over with each party change. Though claiming this will decentralize prosecutions, it actually gives the Justice Department more control as political loyalists will fill prosecutorial positions rather than career prosecutors. Making this change will make prosecutors more accountable to the public as there will be political costs associated with stepping outside societal expectations but will heighten the risk that federal prosecution is used as a political shield or weapon.
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!