Tag Archives: DOJ

Jackson List: Update on DOJ’s Much-Coveted AG Jackson Portrait

During his seven-plus years as a high official in the Executive Branch of the United States Government, Robert H. Jackson served mostly in the U.S. Department of Justice.  Yes, Jackson started at Treasury—he came to Washington when President Franklin D. Roosevelt appointed him in 1934 to serve as Assistant General Counsel in the Treasury Department’s Bureau of Internal Review.  Yes, Jackson was detailed in late 1935 from Treasury to the Securities and Exchange Commission.  But from 1936 through Spring 1941, Jackson was a leader, and he rose to be the leader, at DOJ.

President Roosevelt nominated Jackson three times, each confirmed by the Senate, to serve in the Justice Department.  In 1936, Jackson was appointed Assistant Attorney General.  He spent that year heading the Tax Division and the next year heading the Antitrust Division.  In March 1938, Jackson was appointed Solicitor General, then the Department’s number two position.  And in January 1940, Jackson was appointed Attorney General.  He served in that Cabinet office until he was appointed to the U.S. Supreme Court in July 1941.

The Department then arranged for Jackson’s official AG portrait to be painted.  Click here to see it—John Christen Johansen, one of America’s most noted portrait painters, produced it in Fall 1942 following sittings with Jackson.

The Department of Justice has a collection of portraits of each Attorney General—click here to see its online portrait gallery.  By custom, a perk of serving as a senior DOJ official is the right to choose, in office rank order, which former AG portrait(s) one wishes to hang in his and her offices and conference rooms.

As I have chronicled previously (see links below), the Jackson portrait has been, over the years, in high demand.  I cannot (yet) document all of its homes since 1941, but I know that:

  • Solicitor General Seth P. Waxman (1997-2001) had the Jackson portrait in his conference room;
  • Solicitor General Paul D. Clement (2005-2008) had the Jackson portrait in his immediate office;
  • Attorney General Michael B. Mukasey (2007-2009) had the Jackson portrait in his office;
  • Attorney General Eric H. Holder, Jr. (2009-2015) had the Jackson portrait in his conference room;
  • Solicitor General Donald B. Verrilli, Jr. (2011-2016) could not get the Jackson portrait away from AG Holder, so Verrilli had a copy made and kept that in his office; and
  • Deputy Attorney General Rod J. Rosenstein (2017-2019) had the Jackson portrait in his conference room.

Rosenstein of course resigned as DAG this Spring.

We now know, thanks to the Wall Street Journal’s July 13 report, that Attorney General William P. Barr was waiting to snag the Jackson portrait.  It today hangs, again, in the AG’s—Jackson’s former—office.

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Some links—

  • Sadie Gurman, “Justice Department Chiefs Can’t Get Enough of the Patron Saint of the Rule of Law,” Wall Street Journal Online, July 13, 2019 (click here—paywall-blocked from non-subscribers, but they can access it through libraries, etc.…);

(And thanks, WSJ, for the article’s generous mention of the Jackson List and you many subscribers.  This motivated many more of you to become new subscribers.)

  • a 2007 Jackson List post, “Office Wall Décor” (click here);
  • a 2008 Jackson List post, “An Update on Attorney General Mukasey’s Office Décor” (click here);
  • a 2009 Jackson List post, “Department of Justice Installations, New and Permanent” (click here); and
  • my 2003 Buffalo Law Review article, “A Jackson Portrait for Jamestown, ‘A Magnet in the Room,’” which discusses Jackson’s participation in tribute and dedication events and his various portraits that are displayed in locations throughout the U.S. (click here).

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This post was emailed to the Jackson List, a private, one-way (me to you), entirely non-selective email list that reaches many thousands of subscribers around the world.  I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: The Federal Prosecutor (1940)

On this date in 1940, Robert H. Jackson—age forty-eight, three months into his service as Attorney General of the United States—gave one of his most important, famous, enduring speeches:  The Federal Prosecutor.  He spoke on that Monday to the chief federal prosecutors of his day, the U.S. Attorneys then serving in each Federal Judicial District across the country.  They were assembled in the Great Hall at the U.S. Department of Justice in Washington, D.C., for the Second Annual Conference of U.S. Attorneys.

Attorney General Jackson had moved up to that position from having been Solicitor General of the U.S., then DOJ’s number two position.  As a new AG in 1940, he was leading a Department that had been misdirected and, as a result, badly demoralized.  This speech was part of Jackson’s work to clean up DOJ.  The speech offered his vision of proper, ethical conduct by federal prosecutors.  It was, you will note, the antithesis of an April Fool’s Day message.

Jackson’s speech is quoted often.  I recall first reading of it in Justice Scalia’s dissenting opinion in Morrison v. Olson (1988), which quotes from it liberally, and then getting and reading the whole Jackson speech to get a better understanding of it in full, in context.  I have read it many times since then—it was, for example, handed out as assigned reading to many attorneys by a senior DOJ official when I worked in there in the 1990s, and I completed the assignment.  I have heard or read most Attorneys General, Deputy Attorneys General, and other senior DOJ officials, including recently, quote from Jackson’s speech in their own speeches, other public remarks, and written work.

Attorney General Jackson’s speech bears rereading in full.

Jackson’s speech then bears what he hoped in 1940 that it would accomplish:  absorption and implementation by every “gentleman,” and today also every gentlewoman, who wields federal prosecutorial power.

 

*              *              *

 The Federal Prosecutor

By Robert H. Jackson

Attorney General of the United States

April 1, 1940

            It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country.  The prosecutor has more control over life, liberty, and reputation than any other person in America.  His discretion is tremendous.  He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.  Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed.  The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial.  He may dismiss the case before trial, in which case the defense never has a chance to be heard.  Or he may go on with a public trial.  If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole.  While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere.  This authority has been granted by people who really wanted the right thing done—wanted crime eliminated—but also wanted the best in our American traditions preserved.

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguard by presidential appointment, requiring confirmation of the Senate of the United States.  You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.

Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington, and ought not to be assumed by a centralized Department of Justice.  It is an unusual and rare instance in which the local District Attorney should be superseded in the handling of litigation, except where he requests help of Washington.  It is also clear that with his knowledge of local sentiment and opinion, his contact with and intimate knowledge of the views of the court, and his acquaintance with the feelings of the group from which jurors are drawn, it is an unusual case in which his judgment should be overruled.

Experience, however, has demonstrated that some measure of centralized control is necessary.  In the absence of it different district attorneys were striving for different interpretations or applications of an Act, or were pursuing different conceptions of policy.  Also, to put it mildly, there were differences in the degree of diligence and zeal in different districts.  To promote uniformity of policy and action, to establish some standards of performance, and to make available specialized help, some degree of centralized administration was found necessary.

Our problem, of course, is to balance these opposing considerations.  I desire to avoid any lessening of the prestige and influence of the district attorneys in their districts.  At the same time we must proceed in all districts with that uniformity of policy which is necessary to the prestige of federal law.

Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor.  Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just.  Although the government technically loses its case, it has really won if justice has been done.  The lawyer in public office is justified in seeking to leave behind him a good record.  But he must remember that his most alert and severe, but just, judges will be the members of his own profession, and that lawyers rest their good opinion of each other not merely on results accomplished but on the quality of the performance.  Reputation has been called “the shadow cast by one’s daily life.”  Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character.  Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.

The federal prosecutor has now been prohibited from engaging in political activities.  I am convinced that a good-faith acceptance of the spirit and letter of that doctrine will relieve many district attorneys from the embarrassment of what have heretofore been regarded as legitimate expectations of political service.  There can also be no doubt that to be closely identified with the intrigue, the money raising, and the machinery of a particular party or faction may present a prosecuting officer with embarrassing alignments and associations.  I think the Hatch Act should be utilized by federal prosecutors as a protection against demands on their time and their prestige to participate in the operation of the machinery of practical politics.

There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community.  Law enforcement is not automatic.  It isn’t blind.  One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints.  If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate.  We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.  What every prosecutor is practically required to do it to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants.  Therein is the most dangerous power of the prosecutor:  that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.  With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.  In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.  It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.  It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

In times of fear or hysteria political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views.  Particularly do we need to be dispassionate and courageous in those cases which deal with so-called “subversive activities.”  They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a “subversive activity,” such as we have for murder or larceny.  Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as “subversive” by those whose property interests might be burdened or affected thereby.  Those who are in office are apt to regard as “subversive” the activities of any of those who would bring about a change of administration.  Some of our soundest constitutional doctrines were once punished as subversive.  We must not forget that it was not so long ago that both the term “Republican” and the term “Democrat” were epithets with sinister meaning to denote persons of radical tendencies that were “subversive” of the order of things then dominant.

In the enforcement of laws which protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of Congress, or dissemination of news or opinions.  Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor.

Another delicate task is to distinguish between the federal and the local in law-enforcement activities.  We must bear in mind that we are concerned only with the prosecution of acts which the Congress has made federal offenses.  Those acts we should prosecute regardless of local sentiment, regardless of whether it exposes lax local enforcement, regardless of whether it makes or breaks local politicians.

But outside of federal law each locality has the right under our system of government to fix its own standards of law enforcement and of morals.  And the moral climate of the United States is as varied as its physical climate.  For example, some states legalize and permit gambling, some states prohibit it legislatively and protect it administratively, and some try to prohibit it entirely.  The same variation of attitudes towards other law-enforcement problems exists.  The federal government could not enforce one kind of law in one place and another kind elsewhere.  It could hardly adopt strict standards for loose states or loose standards for strict states without doing violence to local sentiment.  In spite of the temptation to divert our power to local conditions where they have become offensive to our sense of decency, the only long-term policy that will save federal justice from being discredited by entanglements with local politics is that it confine itself to strict and impartial enforcement of federal law, letting the chips fall in the community where they may.  Just as there should be no permitting of local considerations to stop federal enforcement, so there should be no striving to enlarge our power over local affairs and no use of federal prosecutions to exert an indirect influence that would be unlawful if exerted directly.

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman.  And those who need to be told would not understand it anyway.  A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Michael Cohen’s Upcoming Federal Sentencing & James McCord’s Role in Watergate

(Also on Twitter, slightly edited–)

1/ On Michael Cohen’s upcoming federal sentencing & James McCord’s role in #Watergate—

2/ #MichaelCohen, President Trump’s former lawyer, pleaded guilty in August to eight federal crimes, two related to Trump’s campaign finances & six related to Cohen’s personal finances.

3/ In pleading guilty to the campaign finance crimes, Cohen implicated President Trump in hush money payments to two women in 2016.  Cohen & Trump worked together during his presidential campaign, Cohen told the Court, to conceal affairs that the women had with Trump.

4/ Cohen also pleaded guilty last week to an additional federal crime: making false statements to the U.S. Senate about Trump’s secret efforts during his presidential campaign to make a real estate deal with the Russian government.

5/ Cohen’s Aug. 2018 guilty plea was negotiated with the U.S. Attorney’s Office for the Southern District of New York.  His Nov. 2018 guilty plea was negotiated with the Office of Special Counsel Robert #Mueller.

6/ Cohen reportedly concluded earlier this year “that his life has been utterly destroyed by his relationship with Mr. Trump and his own actions, and [that] to begin anew he needed to speed up the legal process by quickly confessing his crimes and serving any sentence he receives…”  https://www.nytimes.com/2018/12/03/nyregion/michael-cohen-trump-strategy.html

7/ Cohen thus decided to plead guilty without having a deal with prosecutors requiring him to cooperate in continuing investigations & possible future trials & then to seek credit in sentencing for that cooperation.

8/ Cohen has, however, cooperated actively with federal law enforcement & with state law enforcement, & he has pledged to continue to do so.

9/ Cohen is scheduled to be sentenced on this Friday, Dec. 7, in the SDNY by U.S. District Judge William H. Pauley, III.  Cohen’s attorneys have detailed to the Court his cooperation & asked that he be sentenced to probation.

10/ President Trump has tweeted that Cohen “should … serve a full and complete sentence.”  https://twitter.com/realDonaldTrump/status/1069614615510859776

11/ Mueller’s office agreed with Cohen to inform the Court of his cooperation.  It is expected to do so soon.

12/ The #Watergate comparison:  Cohen’s role in the investigations of possible crimes involving President Trump & others close to him in business, in his presidential campaign, & in his administration, resembles the role that James W. #McCord, Jr., played in Watergate.

13/ McCord, formerly an FBI agent & then a CIA officer, worked in 1972 as a bodyguard & a security coordinator at the Committee to Reelect the President (CREEP) [#Nixon].

14/ On June 17, 1972, McCord was one of five burglars arrested in Democratic National Committee offices in the Watergate hotel & office complex in Washington, D.C.

15/ The U.S. Department of Justice—the U.S. Attorney’s Office in D.C.—investigated.  It persuaded a federal grand jury to indict McCord, his fellow Watergate arrestees, & two others to whom they were connected.

16/ Judge John J. #Sirica, Chief Judge of the U.S. District Court for the District of Columbia, tried the case.

17/ Early in the trial, five of the defendants—a former White House employee named E. Howard Hunt & the four other burglars who had been arrested at the Watergate with McCord—pleaded guilty.

18/ The trial of McCord & his remaining defendant, CREEP general counsel G. Gordon Liddy, went forward.  The jury convicted each man on every charge.

19/ Chief Judge Sirica, skeptical that all the facts had been brought out at the trial, then prepared to sentence the seven men.

20/ On Tuesday, March 20, 1973, three days before the scheduled sentencing, Judge Sirica was shocked to find McCord in the reception area of the judge’s chambers, talking to one of his law clerks.

21/ McCord was there to deliver a letter.  It turned out to be one of the most consequential letters in U.S. history.

22/ After taking appropriate precautions, Judge Sirica, before witnesses, opened McCord’s letter.  As he read it, he began to think, according to his memoir, “This is it, this is it, this is the break I’ve been hoping for.”  http://watergate.info/1973/03/19/mccord-letter-to-judge-sirica.html

23/ Judge Sirica kept the letter secret from the public until McCord’s sentencing at the end of that week.  But, on that Tuesday evening, he shared & discussed it with his other law clerk.  “I’ve always told you I felt someone would talk.  This is going to break this case wide open.”

24/ On March 23, Judge Sirica read McCord’s letter in open court.  He then sentenced the convicted defendants.  He gave lengthy sentences to six & put off sentencing McCord.

25/ McCord’s letter indeed began the unraveling of Watergate.  It led to further investigations, confessions, guilty pleas, indictments, & convictions, & to a President’s resignation.

26/ McCord committed serious crimes.  Then he came forward & told truthfully to prosecutors, juries, & Congressional committees, what he had done & what he knew.

27/ This cooperation earned him judicial credit.  Chief Judge Sirica sentenced James McCord in November 1973 to one to five years in prison.  He ended up serving four months.

Jackson List: Public Life & the Pursuit of Good Information (Thanksgiving 1937)

On the evening of Wednesday, November 24, 1937, United States Assistant Attorney General Robert H. Jackson, then heading the Antitrust Division in the U.S. Department of Justice, spoke in Washington at a private gathering of young, liberal Members of Congress.  The group included Senator Sherman Minton (D.-IN), Representative Knute Hill (D.-WA), and others.

AAG Jackson spoke to these Senators and Representatives at length and powerfully.  Jackson had, by then, become a national figure.  He was a leading voice of President Roosevelt’s New Deal.  Its policies had led the U.S. economy to optimism and recovery following the worst of the Great Depression.  President Roosevelt had been reelected overwhelmingly—he won 46 of 48 States—just one year earlier.  But now the Administration, including Jackson, was contending with mixed economic conditions.  There were signs of a renewed downturn and, as a result, some public discontent.

Robert Jackson, in this speech—which it seems that he made from notes and papers that, alas, he did not preserve—criticized some businesses for thwarting further economic recovery.  Jackson recited statistics on recent business behavior.  He discussed manufacturers’ recent price increases, which had produced high profits for companies but not led them to raise their workers’ wages.  He showed the Members a chart depicting rises in prices and industrial profits.

*          *          *

The next day, Thursday, November 25, 1937, was Thanksgiving Day.  It seems that Robert Jackson and his wife Irene spent the holiday, with their daughter Mary (a senior at National Cathedral School for Girls) and maybe also with their son Bill (a Yale College freshman), at their home in Washington.

On that Thanksgiving morning, elsewhere in Washington, one of the young Congressmen who had heard Jackson speak the previous evening dictated this letter (which then got typed up, signed, and delivered to Jackson’s DOJ office, probably the next day)—

My dear Bob:

This Thanksgiving morning, before I tie into the things which are ahead for the day, I want to tell you how much I enjoyed and profited by your speech last night.

It was certainly an inspiration to anyone feeling his way through the maze of things as they are today.  It was informative from first to last, and the best kind of a picture I have ever seen drawn of our problems and complexities in a brief space of time.

I feel that if closer relations existed between men like you and the elected representatives of the people, we should all be a lot better off.

 With all good wishes, I am,

                                                Sincerely yours

                                                /s/ Lyndon B. Johnson

*          *          *

During the next week, Representative Johnson (D.-TX), age 29, elected to Congress in a special election the previous April, continued to think about Assistant Attorney General Jackson’s November 24 speech.  Jackson apparently did not respond promptly to Johnson’s November 25 letter.  So on Wednesday, November 30, Johnson dictated and sent a second letter to Jackson:

My dear Mr. Jackson:

The more I think of your excellent address the other evening, the more I appreciate what a wealth of material and research was in it.

I wonder if you would be so kind as to steer me a little in my efforts to educate myself more fully in the lines which you followed out.  Could you, for instance, tell me where it would be possible for me to obtain the full information concerning the increase in prices of products in the major manufacturing fields during the past few years, in their relation to increases in wages and in profits?  I was most interested in that, and related phases, of your discourse.

With all good wishes, I am,

Sincerely yours

                                 /s/ Lyndon B. Johnson

Representative Johnson—LBJ, if I may, although the fact that 1937’s Johnson would become our “LBJ” would not have been apparent then—was not alone in being interested.  Two days later, Representative Hill also wrote to Jackson:

My dear Jackson:

I was very much impressed with your talk before the Liberal bloc last Wednesday night, and particularly by the chart you presented, which showed the contrast [sic?] between the rise in prices and the rise in profits in industries.

You may recall that I asked you if it would be possible to secure a copy of this chart, which you intended to have reprinted.  I sincerely hope that this will be possible, as I am anxious to study the correlation in more detail.

                                    Sincerely yours

                                    /s/ Knute Hill

*          *          *

At the Department of Justice, Jackson’s staff moved to get him to answer the Congressmen’s queries.  Someone put a printed pink slip, reading “SPECIAL,” on Johnson’s second letter.  Jackson’s secretary Grace Stewart added a typed note:  “Is the information available?  Senator Minton also inquired.”

In mid-December, Jackson responded by dictating letters that were typed and sent back to the Congressmen.  His letter to Representative Hill, age 61 and just reelected to his third term in the House, was direct:

My dear Mr. Hill:

I have not had a chance to get the figures which I used the other night completed with sufficient accuracy so they would be suitable for being publicly used.  I understand that [Roosevelt economic adviser] Leon Henderson has some studies which are dependable, and I would suggest that you rely on his for the present.

Sincerely yours,

/s/ Robert H. Jackson

To Johnson, Jackson sent basically the same letter, calling his “figures … hastily assembled and pretty rough for public use.”

And it seems that Jackson responded to Senator Minton—who a dozen years hence would become his U.S. Supreme Court colleague—by telephone.

*          *          *

As Thanksgiving Day dawns tomorrow, I hope that you wake up thinking of important topics and great people, and that you can make contact with them and get good responses.

I hope that you will “tie into” many good things throughout the day and always.

I hope that your representatives in government pursue good information diligently.

And I thank you for your interest in the Jackson List.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.