Under the Appointments Clause of the United States Constitution, the officeholder is nominated by the president of the United States, and, following a confirmation hearing before the Senate Judiciary Committee, will take office if confirmed by the majority of the full United States Senate. The attorney general is supported by the Office of the Attorney General, which includes executive staff and several deputy attorneys general.
The title, "Attorney General" is an example of a noun (attorney) followed by a postpositive adjective (general).[3] "General" is a description of the type of attorney, not a title or rank in itself (as it would be in the military).[3] Even though the attorney general (and the similarly titled solicitor general) is occasionally referred to as "General" or "General [last name]" by senior government officials, this is considered incorrect in standard American English usage.[3][4] For the same reason, the correct American English plural form is "attorneys general" rather than "attorney generals".[4]
Congress passed the Judiciary Act of 1789 which, among other things, established the Office of the Attorney General. The original duties of this officer were "to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the president of the United States, or when requested by the heads of any of the departments".[5] Some of these duties have since been transferred to the United States solicitor general and the White House counsel.
The Department of Justice was established in 1870 to support the attorneys general in the discharge of their responsibilities.
Additionally, the attorney general advises the president of the United States on appointments to federal judicial positions and Department of Justice roles, including U.S. Attorneys and U.S. Marshals. While the attorney general may represent the United States in the Supreme Court and other courts, this is typically handled by the solicitor general.[9][10] The attorney general also performs or supervises other duties as required by statute or executive order.
The attorney general manages legal issues involving public safety, civil rights, and national security. The attorney general also communicates legal concerns to Congress and ensures compliance with federal laws across states. The attorney general's role occasionally evolves through congressional legislation. For example, in 2001, the PATRIOT Act expanded the department's surveillance and investigative authority in matters of terrorism and national security, significantly impacting the scope of the attorney general’s responsibilities.[11] Additional duties include supervising federal penitentiaries and administering the United States Federal Witness Protection Program.
Presidential transition
It is the practice for the attorney general, along with the other Cabinet secretaries and high-level political appointees of the president, to tender a resignation with effect on the Inauguration Day (January 20) of a new president. The deputy attorney general is also expected to tender a resignation, but is commonly requested to stay on and act as the attorney general pending the confirmation by the Senate of the new attorney general.
For example, upon the inauguration of President Donald Trump on January 20, 2017, then-Attorney General Loretta Lynch left her position, so then-Deputy Attorney General Sally Yates, who had also tendered her resignation, was asked to stay on to serve as the acting attorney general until the confirmation of the new attorney general Jeff Sessions, who had been nominated for the office in November 2016 by then-President-elect Donald Trump.[12][a]
28U.S.C.§508 establishes the first two positions in the line of succession, while allowing the attorney general to designate other high-ranking officers of the Department of Justice as subsequent successors.[30] Furthermore, an Executive Order defines subsequent positions, the most recent from March 31, 2017, signed by President Donald Trump.[31] The current line of succession is:
Executive Order13787 for "Providing an Order of Succession Within the Department of Justice"
Notes
↑ Unusually for a transitional acting appointment, Yates was dismissed and replaced with another Acting Attorney General before Sessions was confirmed because she refused to defend an executive order of the incoming administration.[13]
1 2 3 Served as acting attorney general in his capacity as deputy attorney general, until his own appointment and confirmation as attorney general.
↑ Served as acting attorney general in his capacity as deputy attorney general, until the appointment of a new attorney general. Thornburgh later served as attorney general from 1988–1991.
↑ Served as acting attorney general in his capacity as Assistant Attorney General for the DOJ Civil Division.[15] Gerson was fourth in the line of succession at the Justice Department, but other senior DOJ officials had already resigned.[16]Janet Reno, President Clinton's nominee for attorney general, was confirmed on March 12,[17] and he resigned the same day.[17]
↑ Served as acting attorney general in his capacity as deputy attorney general, until the appointment of a new attorney general. Holder later served as attorney general from 2009–2015.
1 2 On August 27, 2007, President Bush named Solicitor General Paul Clement as the future acting attorney general, to take office upon the resignation of Alberto Gonzales, effective September 17, 2007.[18] On September 17, President Bush announced that Assistant Attorney General for the DOJ Civil DivisionPeter Keisler would become acting attorney general, pending a permanent appointment of a presidential nominee.[19][20] According to administration officials, Clement became acting attorney general at 12:01am September 17, 2007, and left office 24 hours later.[21] Keisler served as acting attorney general until the confirmation of Michael Mukasey on November 9, 2007.
↑ Served as acting attorney general in her capacity as deputy attorney general, until she was fired after saying the Department of Justice would not defend an executive order in court.[22]
↑ Following the resignation of Jeff Sessions as attorney general at the request of President Donald Trump, Rosenstein served as acting attorney general in his capacity as deputy attorney general for a few hours on November 7, 2018 until Trump signed an executive order naming Matthew Whitaker as acting attorney general later that day.[23]
↑ The legality of Matthew Whitaker's appointment as acting attorney general was called into question by several constitutional scholars. Among those included Neal Katyal and George T. Conway III, who asserted it is unconstitutional, because the Attorney General is a principal officer under the Appointments Clause, and thus requires senate consent, even in an acting capacity.[24] Maryland filed an injunction against Whitaker's appointment on this basis.[25] John E. Bies at Lawfare regarded it as an unresolved question.[26] The DOJ Office of Legal Counsel released a legal opinion, asserting that the appointment was legal and consistent with past precedent.[27]
↑ Served as acting attorney general in his capacity as Assistant Attorney General for the DOJ National Security Division for a few hours following the resignation of Jeffrey Rosen at noon on January 20, 2021. President Joe Biden signed an executive order naming Deputy Assistant Attorney General for Human Resources and Administration Monty Wilkinson as acting attorney general later that day.[28]
↑ Staff reporter (February 21, 1993). "Stuart Gerson's Parting Shot". The New York Times. Retrieved December 12, 2008. As supporters of the Brady gun-control bill prepare to introduce it in Congress yet again this week, they find a welcome, if unlikely, ally in Stuart Gerson, the Acting Attorney General. Because President Clinton has had so many problems finding a new Attorney General, Mr. Gerson remains in office...
1 2 Ifill, Gwen (March 12, 1993). "Reno Confirmed in Top Justice Job". The New York Times. Retrieved December 12, 2008. She will replace Acting Attorney General Stuart M. Gerson, a holdover appointee from the Bush Administration. Ms. Reno said he resigned today.
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