Government Lawyers Research Paper

1. Size, Structure, And History Of Government Legal Offices

The structure, number, and size of government law offices usually reflects the broader constitutional structures and policy making processes of the regime. Thus, federal or confederal systems usually have separate law officers at the national level and at the state, Lander, or canton levels. Likewise, separation of power systems tend to have more legal offices than parliamentary systems, as during periods of conflict each branch of government finds it necessary to access independent legal advice and representation. In countries such as the United States, where there is federalism, a separation of powers, and where courts exercise sweeping policy making powers, governmental lawyers are both numerous and important policy makers (Clayton 1995).

There is no accurate count of the total number of lawyers employed by governments around the world, but in the USA alone the Department of Justice employs nearly 11,000 attorneys and has a budget in excess of $21 billion (DOJ website 2000). Thousands more are employed in the general counsels’ offices of various executive branch agencies and departments, including the White House Legal Counsel’s Office. Congress too employs numerous attorneys, either in the House or Senate Legal Counsel’s offices, or as staff counsel to various committees. Even the Supreme Court, since 1972, has employed attorneys in its own in-house legal counsel’s office to advise the Court and its members. At the state level, governmental law offices range in size from the Department of Law in California, which employs nearly 1,000 lawyers, to relatively small Attorney General’s offices in states such as Montana. In addition, many more attorneys work for cities, counties, municipalities, and other local governmental units (Clayton 1994).

The premier government attorney in the USA is the Attorney General. The office was established under the Judiciary Act of 1789, and/originally operated as a quasi-judicial institution. By the time Congress created the Department of Justice in 1870, the office had become thoroughly entrenched as part of the executive branch establishment. The Attorney General is appointed by the President and confirmed by the Senate. The office is a member of the Cabinet and a key advisor to the President on judicial selection and the making of administration policy. The Attorney General’s transformation from quasi-judicial to executive, however, left deep tensions in its normative relationship to the President, especially during periods of separation of powers conflict (see Baker 1992). The office’s relationship to other government lawyers has also changed over time. Originally, the Attorney General had little authority over the US District Attorneys ( prosecutors in each federal judicial district), or over the solicitors that existed in executive branch departments and agencies. The early history of the Attorney General’s office is marked by struggles to consolidate control over the federal governments’ legal activities. Eventually, a division of labor emerged wherein agency legal counsel have assumed primary responsibility for advising and counseling government agencies and departments, and the Justice Department, under the direction of the Attorney General, has assumed nearly complete responsibility for conducting federal litigation and prosecution (see Horowitz 1977).

The Attorney General is an administrator of a large department. The office is assisted by a Deputy Attorney General, an Associate Attorney General, and a Solicitor General. The latter has evolved into an elite barristers office, responsible for conducting nearly all of the federal government’s appellate litigation, enjoying a special relationship with the Supreme Court (Sakokar 1992). The Justice Department is divided into 15 major divisions and offices, including important policing and corrections divisions such as the Federal Bureau of Investigation, the Drug Enforcement Administration, the Marshals Service, the Immigration and Naturalization Service, and the Bureau of Prisons. The most important legal divisions, each headed by an Assistant Attorney General, include: Antitrust, Civil Rights, Land and Natural Resources, Criminal, Civil, and the Tax divisions. Additionally, the Office of Legal Counsel, also headed by an Assistant Attorney General, is responsible for authoring the official opinions of the Attorney General. Typically, these are considered binding within the executive branch but not binding on courts, although they are usually accorded respect by the judiciary.

In the USA, most state attorney generals’ offices or law departments mirror the subject-area structure of the Justice Department’s legal divisions. Thus, they are likely to have divisions for antitrust, tax, consumer protection, corporate regulation, etc. Several important distinctions exist at the state level in the USA, however. First, in most states the attorney general is responsible for providing legal advice to all branches of government. Second, responsibility for nonlawyering functions ( police, prisons, etc.) and for most criminal investigations and prosecution are not usually under the control of the attorney general, but under the control of other state-level administrators or locally elected prosecutors. Third, most state attorneys general are elected directly and politically independent of the governor and legislature (Clayton 1994).

In most other countries, the lawyering activities that involve broad policy concerns are usually also separated from those related to routine prosecutions, corrections, and policing. In many, an attorney general, or some similar office, is responsible for advising the government on legal matters, and for litigation enforcing public or political rights, while responsibility for prosecution, police, corrections, and the administration of justice is vested in a Minister of Justice or a Home Secretary.

In England, the Attorney General’s title dates back to 1472. The modern office typically is held by a member of the House of Commons and an elected member of the majority political party. By convention, the Attorney General is not usually a member of the Cabinet, although most attend Cabinet meetings. The Solicitor General serves as a chief deputy. These two officials are known collectively as ‘the Law Officers of the Crown’ (Edwards 1964). Unlike its American counterpart, the Attorney General in England is not an administrator or department head. However, the office has supervisory responsibility over the Treasury Solicitor, the Director of Public Prosecutions as head of the Crown Prosecution Service, the Director of the Serious Fraud Office, and the Director of Public Prosecutions in Northern Ireland, and answers for each of these departments in Parliament.

The Law Officers’ primary responsibility is to represent the public interest in court and act as the chief legal advisers to the government. On matters of political importance, the Attorney General personally will offer legal advice to the government. Routine legal advice, however, is provided to each department or ministry by the Treasury Solicitor’s Department, or by small in-house departmental legal staffs, which are analogous to the general counsel’s offices in various departments in the USA. The Treasury Solicitor’s Department is the largest in-house legal organization and provides legal advice to administrative officials across the executive, including the departments of Treasury, the Cabinet Office, the Ministry of Defence, and the Departments for Education and Employment, and Culture, Media and Sport. The Department employs several hundred attorneys and it also assists the Attorney General in litigation to protect the public interest.

The Home Secretary is responsible for the police, and for administering immigration, the correctional system, and other law enforcement agencies. The appointment of judges is handled exclusively by the Lord Chancellor’s Office, a part of the House of Lords. The chief prosecutor in England is the Director of Public Prosecutions, an officer appointed by the Home Secretary and located in the Home Office, but who is responsible to the Attorney General in the exercise of prosecutorial discretion. The Director heads the Crown Prosecution Service, which is divided administratively into 42 separate areas, each corresponding to the boundaries of local police forces. Each area is headed by a Chief Crown Prosecutor who works with panels of local attorneys and case workers to prosecute crime in the crown courts. Crown Prosecutors report to the Director of Public Prosecutions, but in routine matters they are locally accountable to the public and cooperate closely with the area Chief Constable andother agencies in the criminal justice system. If criminal prosecutions raise serious political concerns, however, the Director of Public Prosecutions or the Attorney General may become involved and assume responsibility for the prosecution. As with much else in English government, prosecutorial independence is protected through custom and convention. Ever since the famed Campbell case, which brought the downfall of the Macdonald government in the 1920s, the constitutional rule is that the Attorney General may seek advice from the Cabinet when making prosecutorial decisions but contacts initiated in the other direction give rise to serious questions of propriety.

In countries influenced by the French and German models, prosecutors are often a part of the judiciary, or under judicial supervision in an essentially inquisitorial system. In such systems, judges and government prosecutors are often located administratively in the Ministry of Justice, but they are buffered from direct political control. In Italy, for instance, public prosecutors are under the constitutional control of the independently elected Supreme Judicial Council, or Consiglio Superiore delle Magistratura. Likewise, in Japan, a hybrid system, the Office of the Public Prosecutor is part of the Ministry of Justice (Homusho), but the Prosecutor General (Kenji Socho) is appointed directly by the Cabinet, and the Minister of Justice (Homu Daijin) is prohibited by law from exercising control over specific cases.

Even in systems more clearly based on the Anglo-American model, certain prosecutions, especially those involving government officials, are institutionally protected from political control. In England, the Attorney General’s prosecutorial decision-making is protected by custom and convention. In the USA, following the infamous Watergate scandal, Congress established the office of the Independent Counsel. Independent counsels were appointed by a special division of the court and buffered from direct political control of the President or the Attorney General (Harriger 1992). Controversy surrounding the Independent Counsel’s investigation of the Whitewater scandal and the eventual impeachment of President Clinton, however, led to the office’s disestablishment in 2000. Nevertheless, Attorney Generals continue to have authority to appoint ‘special prosecutors’ inside the Department of Justice, who enjoy nearly complete independence from political direction by the elected executive.

2. The Intersection Of Politics And Law In Government Lawyering

Protecting prosecutorial independence is one part of a larger concern regarding the role of politics in government lawyering. In this respect, two separate problems dominate the scholarly literature in this area. The first has to do with the separation of powers and the litigating role of government lawyers during periods of constitutional conflict. Administrations who use government litigation to challenge established judicial precedents, for example, are often charged by critics with violating the rule of law or other constitutional constraints (Caplan 1988). Moreover, in the USA it is not uncommon for government lawyers representing different branches to disagree in court about the meaning of a statute or a constitutional provision. In Morrison s. Olson (1988), for instance, Justice Department attorneys argued against the constitutionality of the Independent Counsel Act, while counsel for Congress defended the statute.

Conflicts such as these put government attorneys in an awkward ethical position, and raise serious questions about the appropriate role of government lawyers in a system of separated powers. Moreover, in the USA such conflicts have become more common as prolonged periods of divided government have led partisans increasingly to turn to courts and the administrative bureaucracy, rather than the routine legislative process, for policy making. Scholars and practitioners have written a great deal about the principles that should guide government lawyers when two or more branches disagree about the law. However, such principles are usually just as controversial as the contested notions of separation of powers upon which they rest.

While government lawyers in parliamentary systems escape the political entanglements caused by a separation of powers, they cannot avoid the ‘politics’ of partisan abuse, corruption, and favoritism. There has been a great deal of scholarly debate about which institutional structures best safeguard government lawyers from ‘inappropriate’ political pressures. Anglo-American systems have experimented with structural reforms, such as the Independent Counsel’s Office, as well as informal protections such as conventions that prevent political leaders from contacting government prosecutors in particular cases. All such efforts, however, suffer from the difficulty of distinguishing between proper and improper political influences.

In a well-known case in the USA in 1971, for example, President Nixon ordered the Justice Department to drop a pending antitrust suit against ITT Corporation in exchange for a $400,000 donation to Nixon’s re-election campaign. This led critics to argue for the construction of a ‘fire-wall’ that would prevent White House officials from contacting the Justice Department in particular cases. However, contrast that White House intervention with President Carter’s 1978 decision to reverse the Justice Department’s position in Regents of the University of California vs. Bakke (1978), the first major affirmative action case to reach the Supreme Court. Or consider whether President Clinton should have had no role in deciding whether the Justice Department should file antitrust charges against Microsoft Corporation in 1999. Some cases, whether civil or criminal, present legal issues or involve individuals in a way that the rule of law properly requires direction from democratically accountable officials. Others do not. However, there is no entirely satisfactory way to distinguish a priori between proper and improper political influences. Moreover, removing prosecutors from political control only shifts, but does not remove, the influence of partisanship. Critics of the Independent Counsel’s office in the USA, for example, long complained that most investigations, such as those surrounding Whitewater or the Iran-Contra scandals, were politically motivated (Eastland 1989).

By contrast, countries relying on the French and German models tend to protect prosecutorial independence by trying to remove it entirely from ‘political’ influence and lodging the power under the direction of the judiciary. Such systems thus trade off democratic accountability over criminal prosecution for judicial control. However, they too only shift, rather than remove, the sources of political influence and must also confront the difficulty of distinguishing between proper and improper influences. Even judicial officials are accountable to broader regime structures and they too can be subject to corruption and partisan abuse. Determined political leaders have had no more trouble influencing prosecutors administratively lodged in the judiciary as those in the executive. In the well-known Credit Lyonnais case in France, for instance, President François Mitterand was able to use party influence to control decisions in the Ministry of Justice over the prosecution of corruption charges involving government ministers, and the French and Italian Socialist parties, and leading businessmen with alleged Mafia ties. Likewise, in Italy, where the independence of prosecutors is fixed constitutionally, a well-known effort to prosecute political corruption charges against more than 400 political figures, including several ministers and members of Parliament in the mid-1990s foundered when Parliament approved a law fixing a deadline for the disposal of cases. In a system notorious for delay and inefficiency, the law effectively gave immunity to many of those who had been indicted.

The intersection of law and politics in government lawyering, and the administrative structures governing it, will likely continue to dominate scholarly attention in the future. As noted above, existing studies of government lawyering tend to focus on particular offices or administrations. Little work of a comparative nature, either within, or across, different political systems has been undertaken, and this remains perhaps the most fruitful direction of future research.

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