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Bicentennial Celebration of the U.S. Attorneys

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Bicentennial Celebration of the United States Attorneys 1789 - 1989 "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor– indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." QUOTED FROM STATEMENT OF MR. JUSTICE SUTHERLAND, BERGER V. UNITED STATES, 295 U. S. 88 (1935) INTRODUCTION In this, the Bicentennial Year of the United States Constitution, the people of America find cause to celebrate the principles formulated at the inception of the nation Alexis de Tocqueville called, “The Great Experiment.” The experiment has worked, and the survival of the Constitution is proof of that. But with the celebration of the Constitution must also come the commemoration of those sharing responsibility for the realization of those noble principles in the lives of the American people, those commissioned throughout our nation’s history as United States Attorneys. Charged in the Constitution with ensuring “that the laws be faithfully executed,” the Presidents of the United States, from George Washington to George Bush, have been responsible for the appointment of United States Attorneys to assist them in carrying out that mandate. Those who live in the Twentieth Century can scarcely imagine life in America two hundred years ago. Victory in the Revolutionary War did not guarantee independence, as the War of 1812 soon proved. Neither did the end of war ensure a peaceful and methodical government. As the infant Union struggled to exist, it soon became apparent that a federal system of courts would be needed to take care of cases beyond the jurisdiction of the states. How could individual states prosecute cases involving crimes at sea or claim jurisdiction in matters such as counterfeiting or fraud against the then-existing national bank? The framers of the Constitution, therefore, included in Article III a directive requiring a system of federal courts to be established just below the United States Supreme Court to deal with such cases. In response to the mandates of the Constitution, Congress enacted the Judiciary Act of 1789, directing the President to appoint in each federal district “a meet person learned in the law to act as an attorney for the United States.” According to 1 Stat. 92, the United States Attorney was “to prosecute in (each) district all delinquents for crimes and offenses cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned.” Within a few days of the passage of the Judiciary Act, President George Washington appointed thirteen distinguished people to fill the offices of United States Attorneys in the newly created federal judicial districts. Among those first appointed were John Marshall, United States Attorney for Virginia, later the Chief Justice of the United States Supreme Court; and Christopher Gore of Massachusetts, later governor of that state. Those selected for the Office of United States Attorney represented the best from their states. President George Washington wrote to Richard Harrison about accepting the appointment as United States Attorney for the District of New York, “The high importance of the judicial system in our national government makes it an indispensable duty to select such characters to fill the several offices in it as would discharge their respective duties in honor to themselves and advantage to their country.”1 The tradition of appointing those committed to honor, courage, and justice continues to the present day. Those who have held and now hold the Office of United States Attorney reflect the honor of which George Washington spoke two hundred years ago. Ninety-four federal districts exist today with ninety-three United States Attorneys serving in those districts protecting the interest of the United States and its citizens.2 Caseloads involve issues ranging from the brutal to the compassionate. The United States Attorney is the one responsible for translating the concept of justice into the everyday lives of its citizens. A United States Attorney brought to justice a man who had murdered his wife and two young daughters when he had convinced all others of his innocence, and it was a United States Attorney who arranged for the silver from the U.S.S. Missouri to be returned to the home state for display and safekeeping. Before the Civil War, United States Attorneys prosecuted only the cases mentioned specifically in the Constitution, namely, piracy, counterfeiting, treason, felonies committed on the high seas, or cases resulting from interference with federal justice (perjury, bribery), extortion by federal officers, thefts by employees from the United States Bank, and arson of federal vessels.3 Over the years, however, the caseloads have changed as have the responsibilities of the office. 1 The First 100 Years (1789-1889); The United States Attorneys For The Southern District of New York, p. 3. 2 The same United States Attorney serves both the District of Guam and the District of the Marianna Islands. 3 James Eisenstein, Counsel for the United States: U. S. Attorneys in the Political and Legal Systems, (Baltimore: The Johns Hopkins Press, 1978), p. 9. Since 1870, the United States Attorneys have worked under the direction of the United States Department of Justice. Prior to that time, they conducted their duties in what has been described by one former United States Attorney as “splendid isolation . Each was a king in his own domain, appointed by the President of the United States and directly answerable to him alone.”4 Before the institution and regulation of salaries for the office, only a privileged few managed to live like kings. Until 1896, United States Attorneys were paid on a fee system based on the cases they prosecuted. Those fees could amount to quite a substantial sum if the district was located on the coast. In those districts, maritime cases filled the docket with seizures and forfeitures involving substantial amounts of expensive cargo. One United States Attorney in such a district reportedly received an annual income of $100,000 as early as 1804, a substantial fortune for that time. In contrast, when regulated salaries were introduced in 1896, they ranged from $2,500 to $5,000. United States Attorneys exerted even more independence by being able to retain their private practice while holding office, a policy that remained unchanged until 1953. This system occasionally gave rise to awkward situations as one United States Attorney discovered when he found himself prosecuting a defendant represented by the Assistant United States Attorney. In 1820, the President was granted the power by Congress to designate an officer within the Treasury Department to oversee the activities of the United States Attorneys. Ten years later, Congress created the position of Solicitor of the Treasury and empowered it to have control over all United States Attorneys as well as United States Marshals and Clerks of Court. With the attending chaos of the Civil War, the work of the United States Attorneys was thrown into disarray, thus signaling the need for more centralized supervisory control. Congress shifted this control in 1861 from the Solicitor of the Treasury to the Attorney General, but the transfer of full supervisory duties did not occur until 1870 with the creation of the Department of Justice. An Executive Order of the President on June 10, 1933, solidified this change in policy stating, “The functions of prosecuting in the courts of the United States . and of supervising the work of the United States Attorneys . now exercised by any agency or officer, are transferred to the Department of Justice.” 4 Whitney North Seymour, Jr., United States Attorney, (New York: William Morrow and Company, Inc., 1975), p. 46. To this day, however, the United States Attorney retains a large degree of independence and prosecutorial discretion. Obviously United States Attorneys receive direction and policy advice from the Attorney General and other Department officials, but the United States Attorney has wide latitude in determining what cases are taken under consideration in his or her district. “The discretionary power to decide whether to prosecute is awesome,” admitted one United States Attorney.5 So formidable is this power that, “if the United States Attorney abuses this power, the only available remedy is removal.”6 An additional supervisory mechanism was added in 1953 with the creation of the Executive Office for United States Attorneys. An order of the Attorney General on April 6, 1953, established the Executive Office to “provide general executive assistance and supervision to the offices of the United States Attorneys.” In recent years, the Executive Office has acted more as a mediating and coordinating agency rather than in a supervisory capacity. Indeed, one of the original directives instructed the Executive Office to “serve as liaison, coordinator
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