The Department of Justice
The United States went its first 81 years without a Justice Department — and the one Congress finally created in 1870 was deliberately designed to be the government's lawyer, not the president's enforcer.
The short version
- The Department of Justice was established by the Judiciary Act of 1870 and began operating on July 1, 1870 — nearly a century after the Constitution was ratified. Before that, the federal government's legal work was handled by a part-time Attorney General with no staff and private attorneys hired case by case.
- The Attorney General heads the DOJ and is the chief law enforcement officer of the United States, responsible for enforcing federal law, representing the government in court, and overseeing the FBI, DEA, ATF, Bureau of Prisons, and more than 40 other components.
- The DOJ's Office of Legal Counsel (OLC) functions as the constitutional interpreter for the executive branch — its formal opinions bind the executive branch the way judicial opinions bind lower courts, making it arguably the most consequential legal office most Americans have never heard of.
- The founding premise of DOJ independence — that the law should apply equally regardless of who holds power — is encoded nowhere in statute. It exists as a norm, enforced by professional culture and political cost, which is why it has repeatedly failed under pressure.
What it is
For the first eight decades of the republic, the United States had an Attorney General but no Justice Department. The position was created by the Judiciary Act of 1789, but it was a part-time role — the AG served as the government's chief legal adviser without staff, without a building, and without the authority to hire subordinates. Federal legal work was scattered across departments, handled by private attorneys retained on a case-by-case basis, and subject to no central coordination. By the Civil War, the government's legal operations had grown so unwieldy and expensive that Congress commissioned a study. The result was the Act to Establish the Department of Justice (1870), which consolidated the government's legal functions under a single cabinet department headed by the Attorney General and staffed by full-time federal lawyers. The DOJ began operations on July 1, 1870, with 82 employees and a budget of $600,000.
Today the DOJ employs approximately 115,000 people across more than 40 component agencies and a $38 billion annual budget. Its functions span criminal prosecution through U.S. Attorneys' offices in all 94 federal judicial districts; civil litigation defending and bringing suit on behalf of the government; law enforcement through the FBI, DEA, ATF, and U.S. Marshals Service; incarceration through the Bureau of Prisons; immigration enforcement through the Executive Office for Immigration Review and, formerly, through Immigration and Customs Enforcement (now part of the Department of Homeland Security); and civil rights enforcement through the Civil Rights Division, which was established by the Civil Rights Act of 1957. The Attorney General is appointed by the president and confirmed by the Senate, serving at the president's pleasure — a structural feature that creates the central tension in DOJ governance.
The Office of Legal Counsel is the DOJ component with the least public visibility and the most constitutional significance. OLC issues formal legal opinions to the president, the attorney general, and executive branch agencies on the constitutionality and legality of proposed actions. Those opinions are binding on the executive branch — agencies must follow them, and they are treated as authoritative interpretations of law unless overturned by courts. OLC produced the opinions that authorized warrantless NSA surveillance after September 11, the torture memos that redefined what constituted unlawful interrogation, and the legal framework for drone strikes against U.S. citizens abroad. Because OLC opinions are often classified and are produced in response to requests from the executive branch, OLC has a structural tendency to produce the legal conclusions the administration requesting the opinion desires — a dynamic that became publicly visible in the post-9/11 period.
The DOJ's 94 U.S. Attorneys are among the most consequential officials in the federal government. Each leads the federal prosecutorial office for a judicial district, exercising enormous discretion about which cases to bring, which individuals to investigate, and how aggressively to pursue particular types of crime. U.S. Attorneys are presidential appointees confirmed by the Senate, serving at the pleasure of the president — which means a new administration can, and routinely does, remove them en masse and replace them with loyal appointees. The firings of U.S. Attorneys in 2006 during the Bush administration became a scandal precisely because the firings appeared to be motivated by the attorneys' failure to pursue voter fraud cases the administration wanted or their pursuit of corruption cases involving Republican officials the administration did not want prosecuted. The episode illustrated a structural reality: the people who decide who gets investigated and prosecuted are, ultimately, political appointees.
Why it matters
The DOJ's fundamental purpose — equal enforcement of the law, regardless of the political standing of the person being prosecuted or protected — depends entirely on a separation between the department's legal judgments and the White House's political interests. That separation has no statutory foundation. The 28 U.S.C. § 503 establishes the Attorney General as the head of the DOJ; nothing in federal statute prohibits a president from directing the AG to investigate a political opponent or to drop a case against a political ally. The separation is maintained by professional norms, by the political cost of visible interference, and by the institutional culture of career prosecutors — a culture that has, at various historical moments, been sufficient and, at others, has failed entirely.
The DOJ's Civil Rights Division was established by Congress specifically to enforce laws that Southern states were refusing to enforce against their own citizens — a recognition that the law means nothing if the people charged with enforcing it have a political interest in not doing so. The Division enforces federal civil rights statutes including the Voting Rights Act, the Fair Housing Act, Title VI of the Civil Rights Act, and statutes prohibiting discrimination in employment, education, and access to government services. Its enforcement priorities shift dramatically between administrations: the Obama Civil Rights Division litigated aggressively against voter ID laws, police misconduct, and discriminatory lending; the Trump administration redirected its resources toward investigations of race-conscious admissions policies at universities. The same statutory authority, differently applied, produces radically different outcomes — illustrating both the power of prosecutorial discretion and the degree to which 'equal enforcement' is a political choice.
The FBI's position within the DOJ creates a specific set of institutional tensions. The Bureau is the DOJ's primary domestic law enforcement and counterintelligence agency, but it also conducts domestic surveillance, operates informant networks, and maintains files on political figures and organizations. Its director serves a ten-year term by statute — specifically designed after J. Edgar Hoover's 48-year directorship to prevent any single person from accumulating the leverage Hoover used to blackmail presidents and politicians across eight administrations. The statutory term did not prevent President Trump from firing Director James Comey in 2017 — a dismissal Trump described, in a subsequent interview, as having been motivated by the Bureau's investigation into his campaign's contacts with Russia. The Comey firing was the most visible presidential interference with an active federal investigation since the Saturday Night Massacre of 1973.
Understanding the DOJ's traditional role is the prerequisite for understanding how it can be abused. The department's power derives from its institutional legitimacy — from the premise that when federal prosecutors bring a case, they are acting on behalf of the law and not on behalf of a political faction. When that premise is violated, the damage is not confined to the specific case being manipulated: it erodes the basis on which every federal prosecution rests. Countries without independent prosecutors — where law enforcement agencies are instruments of whoever holds power — do not simply have different justice systems. They have systems in which law is a tool of political control, and the rule of law as a constraint on power becomes meaningless. The United States has periodically tested how close it can come to that arrangement without crossing over.