                                 Acting Attorneys General

From 1870 until 1953, the Solicitor General served as Acting Attorney General in the event that
   the office o f Attorney General was vacant or the Attorney General was absent or disabled.
   This plan o f succession was modified by Reorganization Plan No. 4 of 1953 and by the
   codification in 1977 at 28 U.S.C. § 508 providing for the following statutory succession:
   Deputy Attorney General, Associate Attorney General, and in such order as the Attorney
   General shall designate, the Solicitor General and the Assistant Attorneys General.

                                                                                          March 30, 1984

                M   em orandum         O p in io n   for th e     Attorney G          eneral



   We have prepared in the time available a list of all of the documented
occasions in which individuals have served as Acting Attorney General be­
cause of a vacancy in the office of the Attorney General.1 From the time of the
establishment of the Department of Justice in 1870 until 1953, the statute
governing succession to the office of Attorney General designated the Solicitor
General as the individual who would be Acting Attorney General in case of the
absence or disability, of the Attorney General, or of a vacancy in the office.2
Reorganization Plan No. 4 of 1953, § 2, 67 Stat. 636 (1953), designated the
Deputy Attorney General to be the first in order of succession, followed by the
Solicitor General. This change was subsequently codified in 28 U.S.C. § 508.
In 1977, the statute was amended to include the Associate Attorney General as
the official who is next in line immediately after the Deputy Attorney General.
The Solicitor General and Assistant Attorneys General were listed as the
officials next in the line of succession, subject to the Attorney General’s
discretion as to their sequence. The statute now reads as follows:
           (a) In case of a vacancy in the office of Attorney General, or
        of his absence or disability, the Deputy Attorney General may
        exercise all the duties of that office, and for the purpose of
        section 3345 of title 5 the Deputy Attorney General is the first
        assistant to the Attorney General.
           (b) When, by reason of absence, disability, or vacancy in
        office, neither the Attorney General nor the Deputy Attorney
        General is available to exercise the duties of the office of Attor­

  1 U ndoubtedly there are other occasions that are not as well docum ented but that could be located with
further research. This list should not be view ed as exhaustive.
  2 See A ct o f July 20, 1870, ch. 150, § 2, 16 Stat. 162, 162; Rev. Stat. § 347 (1873); 5 U .S.C . § 293 (1952).

                                                       39
           ney General, the Associate Attorney General shall act as Attor­
           ney General. The Attorney General may designate the Solicitor
           General and the Assistant Attorneys General, in further order of
           succession, to act as Attorney General.
28 U.S.C. § 508.
  We have found records of the following officials having acted as Attorney
General during vacancies in that office pursuant to these various provisions:

Nam e                                    D ates o f Service                         Reason fo r Vacancy
Solicitor General                        October 21, 1973 to                        Resignation of
  Robert H. Bork3                         January 3, 1974                             Elliot L. Richardson
Deputy Attorney                          March 2, 1972 to                           Resignation of
  General Richard                         June 12, 1972                               John N. Mitchell
  G. Kleindienst
Deputy Attorney                          October 3, 1966 to                         Resignation of
  General Ramsey                          March 2, 1967                               Nicholas deB.
  Clark                                                                               Katzenbach
Deputy Attorney                          September 4, 1964                          Resignation of
  General Nicholas                         to February 10,                            Robert F. Kennedy
  deB. Katzenbach                          1965
Solicitor General                        April 7, 1952 to                           Resignation of
  Phillip B. Perlman                      May 27, 1952                                J. Howard McGrath
Solicitor General                        July 10, 1941 to                           Resignation of
  Francis Biddle                           September 5, 1941                          Robert H. Jackson
Solicitor General                        March 4, 1925 to                           Resignation of
  James M. Beck                           March 16, 1925                              Harlan Fiske Stone
Solicitor General                        April 1, 1901 to                           Resignation of
  John K. Richards                        April 5, 1901                               Joseph McKenna
Solicitor General                        January 18, 1898 to                        Resignation of
  John K. Richards                         February 1, 1898                           John W. Griggs
Solicitor General                        October 24, 1881 to                        Resignation of
  Samuel H. Phillips                      January 2, 1882                             Wayne MacVeagh
Secretary of the                         March 3, 1868 to                           Resignation of
  Interior Orville                        July 14, 1868                               Henry Stanberry
  H. Browning
  3 At the tim e o f M r. B o rk 's service, there w ere vacancies in the offices o f both the A ttorney G eneral and the
D eputy A ttorney G eneral, each having resigned on the sam e day. The office o f the A ssociate Attorney
G eneral had not yet been created. In United States v. Halmo, 386 F. Supp. 593 (E.D. Wis. 1974), the court
held that Mr. B ork becam e A cting A ttorney G eneral pursuant to 28 U.S.C. § 508(b). The court also upheld his
service as A cting A ttorney General for an unlim ited period o f time.

                                                          40
Name                               D ates o f Service                    Reason fo r Vacancy

Assistant Attorney                 July 17, 1866 to                      Resignation of
  General J. Hubley                  July 23, 1866                         James Speed
  Ashton
Secretary of the                   March 18, 1848 to                     Resignation of
  Navy John Y.                      July 1, 1848                           Nathan Clifford
  Mason4

  There is only one period on this list (for two-and-a-half months in late 1973)
during which there was a sustained vacancy in both of the Department’s two
top positions. The longest absence we have documented in the office of
Attorney General during which an Acting Attorney General served is approxi­
mately five months. We are aware of no other hiatus between confirmed
Attorneys General in excess of five months.

                                                              T h eo do re B. O lso n
                                                           Assistant Attorney General
                                                            Office o f Legal Counsel




  4 The President designated Mr. Brow ning, Mr. A shton, and Mr. M ason prior to the establishm ent o f the
Department o f Justice. M r. Mason had previously served as A ttorney General from M arch 4, 1845 until
September 9, 1846.

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