A History of the United States Attorney's Office in the Southern District of New York

This article surveys the history of the U.S. Attorney’s Office for the Southern District of New York by examining some of its most significant periods. Specifically, the article looks at the lawyers appointed as U.S. Attorney for the Southern District of New York and discusses what their respective appointments reflected about the legal climate of the district and the nature of the office at that time. Two eras—the office’s formation and professionalization—are the focus of this article.

Formation

In 1789, Congress created the United States Attorney’s Office for the District of New York.(1) Shortly after, George Washington appointed Richard Harison as the first United States Attorney to run this office.(2) The legislation authorizing the creation of the District of New York and the appointment of a “meet person learned in the law to act as attorney for the United States” to prosecute cases in it defined Harison’s responsibilities as follows: “to prosecute in such district all delinquents for crimes and offenses, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned.”(3) He was not paid a salary. Instead, his compensation for serving in this role consisted of a percentage of the money he won (by fines or civil remedies) for the United States in the cases he brought.(4)

In some ways, Harison was a peculiar choice to lead a flagship office prosecuting violations of United States law. Throughout the Revolution (or what is commonly referred to as the American Revolution), Harison remained loyal to England.(5) His law license was consequently suspended until 1786, and when he was appointed in 1789, he was merely three years from being unable to practice law at all.(6)

The first case he brought in his new office was a criminal indictment for conspiring to murder a ship captain and passenger.(7) He won, and the punishment levied on the defendant was a choice of six months imprisonment of 39 whips and the public whipping post.(8) The first civil action he brought was an application for forfeiture of goods, including “three boxes of ironmongery lines and brushes, four boxes of glassware, etc.”(9) He served as United States Attorney for the District of New York for 12 years, when he was replaced by Edward Livingston.

Thomas Jefferson appointed Edward Livingston to the position of United States Attorney for the District of New York in 1801.(10) Livingston had just finished serving six years in the House of Representatives from New York.(11) A few months later, Livingston was elected Mayor of New York City, an office he held simultaneously with his post as U.S. Attorney.(12) Of course, holding high-profile positions for the state and federal government at the same time presented him with a wide variety of (perhaps conflicting responsibilities). Livingston struck both state and federal officials as a rare candidate capable of carrying out these tasks because of his popularity and general proficiency in both the political and legal landscapes. One year into his term in both roles, his performance could be described as “one of uniform prosperity and uninterrupted success.”(13) But before long, Livingston would prove the federal government’s and state legislature’s mutual faith in him misplaced.

The custom during Livingston’s tenure as U.S. Attorney was for money won for the United States in legal proceedings to be paid directly to the U.S. Attorney in that district, as opposed to being paid directly to the U.S. treasury.(14) Livingston had a practice of delegating this task to his subordinates.(15) In 1803, when a Yellow Fever Outbreak was plaguing New York, and his duties as Mayor required him to devote most of his attention to that front, one of his subordinates stole large sums of money from his office that were owed to the federal government, leaving Livingston in debt to the federal government in the amount of $100,000.(16) He resigned from the positions of U.S. Attorney and Mayor of New York City later that year.(17) This incident, perhaps, should have put the federal government on notice that the job of U.S. Attorney was complex and important enough to command full-time service. It did not. The office remained a part-time position for the next 103 years.

Livingston’s tenure was followed by a period of stability under Nathan Sanford, who was appointed to the post of United States Attorney for the District of New York by Thomas Jefferson in 1803.(18) After his appointment, Sanford continued a career in public service, later becoming Speaker of the New York State Assembly, a state senator, Chancellor of New York, and a United States Senator.(19)

Professionalization

In February of 1906, President Roosevelt appointed Henry Stimson to the position of United States Attorney for the Southern District of New York.(20) At the time immediately preceding Stimson’s appointment, the conditions at that office might be described as “deplorable.”(21) It was underfunded and understaffed.(22) The attorneys who comprised the office worked there part-time, dedicating a substantial amount of their time to their respective private practices.(23) Henry Burnett served at U.S. Attorney for the district, and he, too, dedicated much if his time to private practice.(24) He had a habit of labeling difficult or complicated cases “extraordinary matters,” and referring them (as the custom then permitted) to be handled by attorneys in private practice who were not associated with his office.(25) Like his predecessors, he was not paid a salary, but rather was compensated by a percentage of the money recovered by his office in litigation.(26) When the newly appointed Attorney General Henry Moody met with Stimson upon his appointment to discuss the direction of the office, they agreed that the office would benefit from drastic change.

First, Moody abolished the percentage-of-moneys-recovered system and determined that Stimson would be paid a salary of $10,000 for his work as U.S. Attorney.(27) They further agreed that Stimson would try all of the important cases in court himself, as opposed to delegating the cases to the private sector.(28) Additionally, Stimson set out to hire a competent and energetic staff of attorneys who would work at the office full time to carry out its mission.(29) Stimson's ability to achieve this last objective would be hindered by his office’s inability to pay junior attorneys a competitive salary, but his creativity enabled him to work around this limitation. Noting that law clerks at New York firms were not paid much more than he could offer (his office could offer salaries ranging from $750 to $1500(30)), Stimson reached out to law clerks in New York City to see if he could attract them to his office. He was remarkably successful in this endeavor: Emory Buckner and Felix Frankfurter were among the young lawyers who came to work for him.(31)

Moody and Stimson also sought to alter the office’s traditional targets. Namely, they believed the office could best serve the public by protecting it from the “unregulated actions of private corporations.”(32) At the time Stimson was appointed, the Southern District of New York had never seen a successful prosecution under the Elkins Act or the Sherman Act.(33) Stimson sought to change the culture of the office in this respect, and he did so relentlessly. Targets of his prosecutions included the Manila Paper Manufacturers Association, the American Sugar Refining Company, and a number of railroads and New York banks.(34)

In 1909, Stimson stepped down at U.S. Attorney.(35) His tenure was widely viewed as a success, and he left his successor with an office that, in terms of competence and prestige, had little in common with the office he inherited just three years earlier.(36) Stimson’s service in this office may well have fueled his spirit for public service. He went on to serve as Secretary of War (twice) and Secretary of State.

The fifteen years following Stimson’s tenure as U.S. Attorney saw the office fall into disrepair.(37) From 1921 to 1925, William Hayward served as United States Attorney for the Southern District of New York. Hayward had, according to former Stimson protégée Emory Buckner, undone much of what Stimson had built.(38) According to Buckner, Hayward made a habit of appointing assistant attorneys along political lines and with little regard for legal acumen.(39) Buckner was presented with an opportunity to rectify these perceived problems in 1925, when he was appointed U.S. Attorney for the Southern District of New York at the recommendation of the newly appointed Attorney General, Harlan Stone.

By this time, Buckner has already attained a well-known reputation as an outstanding trial lawyer for his work at the law firm, Root, Clark.(40) He had also attained considerable wealth, such that the salary bestowed upon the U.S. Attorney for the Southern District of New York, still $10,000, did not serve as a deterrent to him.(41) Taking a cue from his former mentor, Buckner instituted wholesale changes in the office, and did his part to restore it to the prominence it had reached under Stimson.

Buckner immediately began weeded out all of Hayward’s appointees and replacing them with his own.(42) In his first year, he appointed nearly 50 new assistant attorneys, recruiting them from the law reviews of the top law schools and without as much regard for political preferences (though he did still strongly favor Republicans)(43) The staff Bruckner compiled was, by any measure, impressive. The group included five future judges, including Chief Judge J. Edward Lumbard of the Court of Appeals for the Second Circuit and Justice John Harlan of the Supreme Court of the United States.(44) After stabilizing the office and leading it to high level of visibility and prominence it had once known, Buckner was able to turn the office’s focus to political corruption.(45) This cause was taken up with vigor by his successor, Charles Tuttle.

Arguably, Buckner fortified what Stimson and Moody began, and paved the way for a U.S. Attorney’s Office for the Southern District of New York that much more closely resembles today’s office. Buckner was also perhaps ahead of his time in the way he went about his post-U.S. Attorney career. While many of his predecessors (and all of the ones mentioned in this article) used their experience as U.S. Attorney as a launching pad for other prestigious roles in public service, Buckner never returned to government work.(46) This strategy is a familiar one among the most recent persons to serve as U.S. Attorney for the Southern District of New York. Seven of the last eight people to hold that position never (or have not yet) returned to public service in a full-time capacity.(47) The position seems now to function more as a transitional role between public service and highly compensated positions in the private sector. Former U.S. Attorneys in this district most commonly move on to partner positions at large Manhattan law firms, while some have become general counsels or started private firms of their own.

-- SteveMesser - 17 Dec 2012

Notes

1 : The Second Circuit Historical Committee, The First 100 Years (1789-1889): The United States Attorneys for the Southern District of New York, New York: 1986, p. 1

2 , 6 , 7 , 8 , 14 , 17 , 19 , 22 , 23 , 25 , 26 , 28 , 31 , 36 , 38 , 43 , 44 : Id

3 : Id at pp. 1-2

4 : Id at p. 2

5 : Id at pp. 3

9 : Id (citing Minutes Book, U.S. District Court, Vol. 1789-1796, pp. 9-10, National Archives, N.Y. Branch)

10 : Hunt, Charles Havens, The Life of Edward Livingston, New York: D. Appleton and Company (1864), p. 90

11 : Id at p. 84

12 : Id at p. 90

13 : Id at 101

15 , 34 : Id at p. 102

16 : Id at pp. 102-103. Instead of waiting for an investigation to determine exactly how much he owed, Livingston volunteered to set his debt at $100,000, a sum that seemed to greatly exceed the amount he actually owed. Id at p. 104

18 : The First 100 Years (1986, p. 11)

20 : Morison, Elting, Turmoil and Tradition: A Study of the Life and Times of Henry L. Stimson, Massachusetts: Houghton Mifflin Company (1960), p. 95

21 : Id at 93

24 , 29 : Id at p. 94

27 : Id at p. 95

30 : Id at p. 97

32 : Id at p. 100

33 : Id at p. 101

35 : Id at p. 117

37 : Mayer, Martin, Emory Buckner, New York: Harper & Row (1968), p. 177

39 : Id (citing letter from Buckner to Felix Frankfurter, 2/1/32)

40 : Mayer (1968)

41 : Id at p. 175

42 : Id at p. 180

45 : Id at pp. 209-237

46 : Id at pp. 237-296

47 : The exception is Roger Hayes, who served as U.S. Attorney for the Southern District of New York for part of 1993. He is currently a criminal court judge in New York City