NEW CONST CALENDAR

 Time again for everyone's favourite blog post- Judge Hisch's Constitutional Calendar. Today he explores the history of Kush Patel's FBI- 

(and we are looking hard at the over 49 on the MNF Bengals/Cowboys snoozer)

On July 26, 1908, Charles Joseph Bonaparte, who held the unique distinction of being both the Emperor Napoleon’s grandnephew and Teddy Roosevelt’s attorney general, complied with an instruction given by the latter. He hired nine agents away from the Secret Service, and 25 other detectives, and appointed them the first special agents of the Department of Justice’s newly-formed Bureau of Investigation. Congressmen and senators, who had not voted to fund this new agency, conjured up comparisons to the Okhrana, the czar’s much-feared secret police force; and made references to Joseph Fouche, the powerful chief of the secret police under Napoleon.  

Not immediately, but during World War I and the “Red Scare” that followed it, many of these fears came to fruition.  Those who were suspected of German sympathies, or communist velleities, or lack of enthusiasm for federal office-holders and their policies, were likely to find their homes or offices ransacked without warrant, their phones tapped without legal authority, their friends and family members shadowed or intimidated.  These practices reached their apex during the attorney-generalship of Harry Daugherty, easily one of the greediest and most corrupt of public officials, who headed the Department of Justice during all of the Harding and some of the Coolidge administration.  

When Daugherty became an unbearable political liability, Coolidge replaced him with the squeaky-clean Harlan Fiske Stone, giving Stone a mandate to clean up DOJ and especially its Bureau of Investigation.  Stone set out to do so, issuing a series of press releases and interviews to make his intent clear.  “There is always the possibility,” he went so far as to admit, “that a secret police may become a menace to free government and free institutions because it carries with it the possibility of abuses of power which are not always quickly apprehended or understood.”  But in the end, “the enormous expansion of federal legislation, both civil and criminal, in recent years, has made a Bureau of Investigation a necessary instrument of law enforcement.”  Stone knew that change would have to come from the top.  He appointed, as acting director of the Bureau, a 29-year-old lawyer already serving in the Bureau. His name was J. Edgar Hoover.

In private correspondence with Harvard Prof. Felix Frankfurter (with whom Stone would later serve on the Supreme Court), Stone aired the view that Hoover should be kept on as director, and could be trusted to keep the agency from sinking to the nefarious “secret police” practices in which it had formerly engaged. Frankfurter wrote back, expressing some reservations. His correspondence seems to suggest that Hoover had been on good behavior because Stone was his boss, but that it was impossible to know how Hoover would behave under weaker, or less principled, attorneys general.  “Hoover might be a very effective and zealous instrument for the realization of the ‘liberal ideas’ which you had in mind for the investigatorial activities of the Department of Justice when his chief is a man who cares about these ideas as deeply as you do, but his effectiveness might be of a weaker coefficient with a chief less profoundly concerned over these ‘ideas.’”  

On December 10, 1924, Attorney General Stone informed Hoover that he was no longer merely “acting,” but was the director of the Bureau of Investigation (or, as it would become in 1935, the Federal Bureau of Investigation).