U.S. Attorneys (originally District Attorneys)
The Judiciary Act of 1789, Section 35, provided for the appointment in each judicial district of a person “learned in the law” to prosecute federal crimes and to represent the United States in all civil actions to which it was a party. The statute did not confer a title upon these local agents of federal authority, but subsequent statutes and court decisions referred to them most frequently as “district attorneys.” In 1948 the Judicial Code adopted the term “United States attorneys.”
The Senate draft of the Judiciary Act of 1789 granted district judges the authority to appoint the district’s attorney, but the approved act simply provided for their appointment, thereby leaving such authority with the President. In 1820 Congress prescribed a term of four years for the attorneys, although it provided for their removal at the pleasure of the President. The 1789 act made no provision for supervision of the district attorneys, although members of the cabinet occasionally gave the attorneys direction regarding suits within the jurisdiction of their departments. As early as 1791 Attorney General Edmund Randolph complained to President Washington of his lack of supervisory authority, but during debate on a bill in 1792, the House of Representatives refused to provide it. Not until 1861 did Congress grant the Attorney General authority to supervise and direct the district attorneys, although earlier statutes provided for some supervision by other officials. In 1830, for example, Congress created the office of the Solicitor of the Treasury, with the power to direct the district attorneys in matters in which the United States had an interest. Upon its creation in 1870, the Department of Justice took over primary responsibility for supervising the district attorneys and their accounts.
The principal duty of the U.S. attorneys was to prosecute suits on behalf of the federal government. Like other officers of the federal courts, Congress occasionally gave the government’s attorneys specific responsibilities related to the administration and operation of the courts. Such duties ranged from reporting on the nature of the federal judicial docket (as under an 1816 law directing the district attorneys to transmit to the secretary of the Navy a statement of all cases pending or disposed of concerning prizes captured by armed ships of the United States) to actually controlling the docket of a particular federal court (as under an 1846 statute giving them the authority to transfer criminal cases between the circuit and district courts). Occasionally the extra-legal duties of the district attorneys were broad enough to affect the substantive rights of the parties to a federal court proceeding. In 1901, for example, Congress enacted a law authorizing these officers to designate the particular United States commissioner before whom any person arrested for violating the Chinese Exclusion Act was to be brought for a hearing.
District attorneys collected fees for their services until 1896, when Congress transformed them into salaried officers in response to the Attorney General’s concern that the fee system encouraged the attorneys to bring vexatious law suits. No significant changes were made regarding the office of U.S. attorneys in the twentieth century, but there was an increase in the degree of control exerted by the Attorney General and the Department of Justice over the conduct of these officers in the field and over the appointment of assistant U.S. attorneys, who, unlike the U.S. attorneys themselves, have not been limited to four-year terms. In 1953, an order of the Attorney General established the Executive Office for United States Attorneys within the Department of Justice to serve as a liaison between the department and the U.S. attorneys in the field.
White, Leonard D. The Federalists: A Study in Administrative History (Westport, CT: Greenwood Press, 1948), 406–411.
Cummings, Homer, and Carl McFarland. Federal Justice: Chapters in the History of Justice and the Federal Executive (New York: Da Capo Press, 1970).
Court Officers and Staff