Acting Attorneys General

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).
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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.
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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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