As attorney general in the wake of the Watergate scandals of the early 1970s, Griffin Bell faced a daunting challenge of moderating the tensions between law and politics. He had to prevent the intermingling of the two so as to restore the Department of Justice to its proper place in our system of government under law. To understand those tensions it is necessary to understand the distinctive place of the attorney general and the Department in the governmental scheme.
The office of attorney general is as old as the nation, being provided for in the Judiciary Act of 1789. One holding the office was required to be "a meet person, learned in the law."1 No statutory requirement of office was laid on any other executive official. Also, unlike any other cabinet officer, the attorney general has historically been considered a quasijudicial officer. He is a bridge between the executive branch and die judicial branch. It is significant that the office was originally established in the Judiciary Act and continues to be provided for in Title 28 of the United States Code, the judicial tide, and not in the part of the code dealing with die other executive departments.2 All of this underscores the unique nature of this office and highlights the importance of its functioning with a dedication to the law, free of external political considerations.
The Department of Justice, which the attorney general heads, is the federal government's "law department." Its lawyers and the attorney general have the United States as their client. They are charged with representing the government in its civil litigation, in criminal investigations and prosecutions, and with giving legal advice to the president and other executive officers. They, as members of the bar, are officers of the court and are bound by the standards of conduct governing the legal profession. Moreover, it is fundamental to our concept of government under law and the even-handed administration of justice that those lawyers interpret and apply die law objectively and fairly, without regard to extraneous political concerns.
At the same time, the attorney general is a presidential appointee, a member of the cabinet, who serves at the pleasure of the president and is expected to be supportive of the administration's policies. More than a dozen other top officials in the department are also appointed by die president and are likewise expected to conduct their business in line with presidentially set policies, which are political in their nature, reflecting the administration's ideological bent and die interests that support the president. There is inevitable tension between the attorney general's lawyering role and his role as a cabinet member and part of the administration of the day. More than any other department or agency, the Justice Department is at a troubling intersection of law and politics. Managing that intersection appropriately is a major challenge for an attorney general.3
Those who have thought about this problem draw a distinction between an administration's setting of general policies, on one hand, and White House intrusion into individual cases on the other. It is generally agreed that it is proper for the president and his administration to enunciate certain policies for the conduct of the Justice Department's business. Policies can be established for the allocation of resources and for the conduct of litigation. For example, the administration may decide to give priority to the prosecution of white collar crime over prosecution of other types of crime or, for another example, might direct that, in civil suits against the government, the defense of lack of plaintiffs standing be asserted whenever it is arguably available. Problems arise, however, when White House personnel seek to intrude into specific situations. Although the president himself has rarely become involved in Justice Department matters, instances are not wanting in which members of the White House staff have sought to influence the conduct or outcome of an investigation or prosecution or the handling of a civil action. …