               Historical Use of Assistant Attorneys General

The Attorney General may reassign Assistant Attorneys General from one unit to another within
  the Department of Justice. This has been done on at least ten occasions and does not require
  that the Assistant Attorney General be reconfirmed by the Senate.

                                                                                           October 27, 1983

          M   em orandum          O p in io n   for the       D   epu ty   A ttorney G eneral


   This responds to your request'for information on whether the Attorney
General may reassign Assistant Attorneys General (Assistants) from one unit
to another without resubmitting their names to Congress, and whether the
Attorney General has ever done so. We believe that the Attorney General is
authorized to make such shifts as internal Department transfers because, except
for the Assistant for Administration, 28 U.S.C. § 507, the Assistants are not
limited to any statutory functions. 28 U.S.C. § 506.1 See also id. §§ 509, 510.
We have identified at least ten occasions on which an Attorney General has
made such transfers. In one other instance, discussed below, political consider­
ations persuaded the Attorney General to make the shift by having the Assistant
resign from his first position and be nominated and confirmed again as an
Assistant for the second position.

                                         I. Historical Examples

  The R egister o f the United States D epartm ent o f Justice and the Federal
Courts (1983) does not list Assistants by division until 1925, shortly after
appointment by division apparently began. Id. at 140. By comparing names of
Assistants heading the divisions since then, we have identified the following
individuals who served consecutively as the head of two different units in the
Department and who were transferred to their second position without a new
confirmation hearing.
   1.     Robert H. Jackson: Mr. Jackson became head of the Tax Division in
March 1936. In January 1937 he was designated head of the Antitrust Division
to fill a vacancy caused by a resignation.2
  1Section S06 states that “ [t]he President shall appoint, by and with the advice and consent o f the Senate, ten
A ssistant A ttorneys G eneral, w ho shall assist the Attorney G eneral in the perform ance o f his duties.” P rior to
1950, this language was codified at 5 U.S.C, § 295.
  2 N.Y. Tim es, Jan. 19, 1937, at 7, col. 7.

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   2. la m es W. M orris: Mr. Morris was appointed to head the Claims (now
Civil) Division in November 1935. In January 1937, he was transferred to the
Tax Division to fill the vacancy left by Mr. Jackson’s transfer, described
above.3
   3. Tom C. Clark/Wendell Berge: Mr. Clark was placed in charge of the
Antitrust Division in early 1943, and Mr. Berge was placed in charge of the
Criminal Division in 1941. As part of a Department reorganization aimed at
increasing efficiency in response to the demands of World War II, the Attorney
General had Mr. Clark and Mr. Berge exchange positions in August 1943.4
   4. D a vid L. Bazelon: Mr. Bazelon was the Assistant in charge of the Land and
Natural Resources Division from 1946 until he was transferred in the Spring of
1947 to head the newly created Office of Alien Property.5
   5. John F. Sonnett: Mr. Sonnett served as Assistant in charge of the Claims
Division from 1945 until May 1947, when Attorney General Clark shifted him
to the Antitrust Division to fill a vacancy caused by the resignation of Wendell
Berge.6
   6. Theron Lam ar Caudle: Mr. Caudle headed the Criminal Division from
1945 until July 1947, when he was moved to the Tax Division.7
   7. Jam es M. M clnem ey: As the result of a Department-wide reshuffling in
the early 1950s, Mr. Mclnemey was transferred from the Criminal Division to
the Land and Natural Resources Division in August 1952.8
   8. M alcolm R. Wilkey: Mr. Wilkey headed the Office of Legal Counsel for a
year until he was shifted in 1959 by Attorney General Rogers to the Criminal
Division. Att’y Gen. Order No. 177-59 (Mar. 2 6 ,1959).9
   9. Edwin L. Weisl, Jr.: Mr. Weisl was moved by Attorney General Clark in
1967 from the Land and Natural Resources Division to the Civil Division.
Att’y Gen. Order No. 384-67 (Oct. 9, 1967).10
   There was one transfer that deviated from this pattern. After passage of the
Civil Rights Act of 1957, Attorney General Rogers chose W. Wilson White,
then Assistant Attorney General for this Office, to head the newly created Civil
Rights Division.11 One reported reason for the choice of Mr. White was to
avoid debate in Congress over the new division by eliminating the need for a
confirmation hearing.12 However, unfavorable reaction from Congress, which
wanted to scrutinize the first head of the Civil Rights Division, persuaded the
   3 Id.
   4 N .Y . T im es, A ug. 29, 1943, at 27, col. 1.
   5N .Y . Tim es, Apr. 25, 1947, at 18, col. 7. Prior to that, there had been an O ffice of A lien Property headed
by a directo r and a separate alien property litigation unit. Id. See also Register, supra, at 13 (41st ed. 1947).
   6 N .Y . Tim es, M ay 2, 1947, at 28, col. 2. See also Register, supra, at 3 (41st ed. 1947).
   7 See Register, supra , a t 4 (41st ed. 1947); H.R. Rep. No. 1079, 83rd C ong., 1st Sess. 90, 91, 95 (1953).
   8 N .Y . T im es, Aug. 9, 1952, at 1, col. 6; id., Aug. 6, 1952, at 12, col. 6.
   9 N .Y . Tim es, M ar. 24, 1959, at 27, col. 2. The Times noted that “ [t]he m ove to the Crim inal Division does
not require S enate co n firm atio n .”
  10N.Y . T im es, O ct. 1, 1967, at l.c o l. 2.
  " S e e A tt’y G en. O rder No. 155-57 (D ec. 9, 1957).
  12 N.Y. T im es, Nov. 22, 1957, at 1, col. 2 (“The expected struggle over confirm ation, with all its likely
personal attacks, w ould doubtless have discouraged any ju d g es o r leading lawyers in private practice from
accepting the civil rights position.”).

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Attorney General and the White House to change their plans. Mr. White
resigned his position with this Office, received a recess appointment as Assis­
tant Attorney General for the Civil Rights Division, and was nominated for the
permanent position. After a six-month delay, the Senate confirmed him.

                            II. Prior Memoranda

   This Office has written at least three times with reference to the fungibility
of Assistants. In 1953 we responded to inquiries from the Deputy Attorney
General by stating flatly that “[t]he several Assistant Attorneys General are not
required to be assigned to any particular divisions.” Memorandum for Russell
L. Malone, Jr., Deputy Attorney General from Ellis Lyons, Acting Assistant
Attorney General, Executive Adjudications Division (Jan. 15, 1953). In 1957,
we examined the issue again in a memorandum prepared for use by the
Attorney General. Noting the lack of any statutory requirement that any Assis­
tant perform specific duties and the statutory vesting of all functions of the
Department, with limited exceptions, in the Attorney General, 28 U.S.C. § 509,
we concluded that there were no statutory limits on the duties of any Assistant
Attorney General. Memorandum on Statutory Specification of Duties of Assis­
tant Attorneys General (Feb. 18, 1957). Finally, earlier this year we wrote an
opinion explaining why there were no constraints on the use of the tenth
Assistant slot created by Pub. L. No. 95-598, § 218, 92 Stat. 2549, 2662
(1978). We concluded that, “[a]s with the other nine Assistant Attorney Gen­
eral slots we believe that the Attorney General may exercise unfettered discre­
tion in deciding how this new Assistant Attorney General can best assist him.”
Memorandum for Edward C. Schmults, Deputy Attorney General from Ralph
W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel (Feb. 8,
1983).

                                  Conclusion

  The Attorney General is authorized under 28 U.S.C. § 506 to have ten
Assistants. He may assign them any duties he chooses, 28 U.S.C. §§ 509, 510,
including the supervision of a division other than that for which they were
nominated and confirmed. This has in fact that been done at least ten times and
there is no reason to believe it cannot be done in the future.

                                                Theodore    B.   O lso n
                                             Assistant Attorney General
                                              Office o f Legal Counsel




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