George Washington’s Attorneys: The Political Selection of United States Attorneys at the Founding

Abstract

Current political and prosecutorial norms reflect the belief that the administration of justice must be insulated from partisan politics. Each day, federal prosecutors make decisions regarding people’s lives and liberty. The federal prosecutors decide whom to charge, for what and when. They can charge anyone so long as they have probable cause to believe the person committed a federal crime. Probable cause is not a high standard. Consequently, a federal prosecutor with political ambitions is able use prosecutorial power to advance partisan political purposes. Similarly, ambitious Justice Department lawyers can use their policy-making authority to target political opponents or politically-unpopular organizations. To make this less likely, norms developed to insulate federal prosecutors from political forces. The norms have insulate specific cases and some believe they should also include policy decisions. This Article examines the relationship between the Nation’s first President and the selection of United States Attorneys. It argues that politics played an important, if not primary, role in the President’s selections. George Washington sought those who would represent the government’s interests, adhere to the government’s policies, and advance Washington’s political goals. His selections also demonstrated Washington’s requirement of loyalty to America. In this respect, the politicization of United States Attorneys occurred at the outset. Part I of this Article defines politicization and identifies its four aspects. Part II describes the United States Attorney position as understood through the 1789 Judiciary Act and state experience. Part III examines how Washington’s selections and selection process included three of the four politicization categories. The concluding Section briefly explores the ramifications of politicization and its potential benefits in today’s prosecutorial environment.