On April 1, 1940, Attorney General Robert H. Jackson strode into the Great Hall of the Justice Department with a complex mission.1 Assembled before him were the nearly 1002 United States Attorneys from around the country3 — each with his own jurisdiction, his own political power base, and his own ideas about how federal prosecutions should be carried out. As Jackson stood before these prosecutors, he had to be aware of the power of the Justice Department and the independence of the important figures to whom he was speaking. The Great Hall features two larger-than-life aluminum cast statues representing the “spirit of justice” and the “majesty of the law” flanking the raised podium from which he spoke.4 Floor-to-ceiling blue velvet drapes behind the speaker bear an enormous seal of the Department of Justice.5 The shimmering terra-cotta tiles on the floor, the soaring ceiling, and the aluminum spectator balconies6 complete the image of a cathedral of justice.
Jackson had multiple goals in mind. One was to make clear how the balance of power should be distributed between the centralized functions of Main Justice in Washington, D.C., and the United States Attorneys spread throughout the nation — each facing local problems and responsive to local communities.7 Jackson wisely wanted to communicate respect for their role. At the same time, Jackson wanted to make clear that uniformity in policy and practice was necessary to administer a federal system.8 But beyond his desire to perform that balancing act, he had an overarching message: Federal prosecutors must rise to a high level of ethical integrity, particularly in times of political turmoil. After identifying the most dangerous temptation of a prosecutor — that he might choose the individuals to pursue, rather than the crimes to prosecute9 — Jackson focused on a singular solution to the risks of prosecutorial abuse: individual character, consisting of qualities “as elusive and as impossible to define as those which mark a gentleman.”10
In developing his theme, Jackson delivered a classic statement of prosecutorial integrity that has echoed through the years. He painted a picture of a prosecutor who understands her vast power, but tempers it with restraint and fairness. Across administrations, Attorneys General have quoted the speech as the timeless touchstone of the Department of Justice’s ethos.11 Jackson’s words live up to the billing: They reflect his gift for combining plain speech with eloquent and memorable epigrams. Yet rather than simply admiring his message, it is worth looking back on the speech to ask how the Justice Department has historically implemented Jackson’s ideals. The answer is found not just in personal integrity, but also in institutional structures and traditions developed over decades that nurtured the values Jackson espoused. These foundations have worked in tandem to fulfill Jackson’s vision.
Today, however, those internal structures face enormous political pressures. The values of impartiality and political neutrality that animated the DOJ’s ethos for decades have broken down. Presidential direction of the Department’s work, once regarded as a transgression of its independence, has become routine. A critical question is whether enforceable legal rules can shore up the DOJ’s historic independence and impartial pursuit of justice. The answer, sadly, is apparently no. The Supreme Court’s modern view of the unitary executive provides a roadmap for upending the Department’s traditions of independence and impartiality; it invites the Executive to deploy the Department’s power for partisan ends. So what is left to keep the Department from becoming the tip of the spear in partisan warfare? Robert Jackson’s reliance on individual character to guarantee ethical prosecution may be all that remains. But it is far from clear that individual character is enough.