The Clause They Struck
In the first draft of the Judiciary Act of 1789, the Supreme Court — not the President — was slated to choose the Attorney General. It was cut before passage. Almost two centuries later, that discarded sentence would have stood directly in Richard Nixon's way.
A Vacancy in the Blueprint
The new republic had a Constitution that named a judiciary and an executive, but no lawyer for either. Article III promised a Supreme Court and whatever lower courts Congress cared to build. It said nothing about who would argue the government's cases before them, or who would advise the President on questions of law. That gap was Oliver Ellsworth's problem to solve.
Ellsworth chaired the ten-member committee the Senate assembled the day after it first reached quorum, and he spent the better part of two months drafting what would become the Judiciary Act. Most of that committee's energy, and nearly all of the recorded argument, went into the architecture of the courts themselves — how far federal jurisdiction should reach into matters the states already handled, whether circuit judges should ride from town to town, whether a defendant deserved a jury drawn under his own state's rules. Contemporaries who fought over those questions did so bitterly. James Madison called the bill defective in both structure and detail. Senator William Grayson called it monstrous.
Buried in Section 35, almost as an afterthought beside the court structure, was a single sentence creating the office of Attorney General. And in its earliest form, that sentence gave the power of appointment not to the President, but to the Supreme Court itself.
The Senate, at this stage of the republic, still met behind closed doors. No public transcript records why the clause was written that way, or why it was struck. What survives is the paper trail — draft, then revision — and the inference historians have drawn from it since.
Two Clauses, Two Fates
The same First Congress was, at almost the same moment, building a second kind of executive officer — and treating that officer completely differently.
Foreign Affairs, Treasury, War
Debated openly on the floor of the House beginning in May 1789. Each secretary was to be appointed by the President with Senate consent, and — after direct, recorded argument — explicitly declared removable by the President alone.
This is the exchange later courts would call the "Decision of 1789": a deliberate, contested vote establishing presidential removal power over department heads.
The Attorney General
Drafted in Senate secrecy, with no surviving debate. First given to the Supreme Court to appoint. Quietly reassigned before passage. The final statute never addressed removal at all — not by the President, not by the Court, not by anyone.
Two duties only: argue the government's cases before the Supreme Court, and advise the President or department heads when asked. No department. No staff. No line of authority.
One office was built through open combat and left with a clear, deliberate answer. The other was built in silence and left with none. When the Attorney General eventually became a subordinate of the President in practice, it wasn't because the First Congress decided it that way — it was because, as one legal historian put it, early presidents simply stepped into a vacuum nobody had filled.
How the Vacuum Got Filled
Nothing forced the question for a long time. The office was so lightly built that for its first decades it barely resembled an institution at all — one lawyer, part-time, no bureaucracy beneath him.
Appointed by Washington two days after the Act became law — under the enacted version, with no judicial appointment and no removal clause at all.
Eighty-one years after the office was created, Congress finally, explicitly, makes the Attorney General head of an executive department — codifying an arrangement that had simply become custom.
The Supreme Court, examining the Foreign Affairs debate — not the Attorney General's history — rules that the President holds an essentially unrestricted power to remove purely executive officers. The reasoning is later applied to the Attorney General by category, not by any direct examination of 1789's silence on the office.
Here the real record and the counterfactual one diverge. What actually happened — and what might have happened under the struck clause — are laid out below.
Saturday Night, Two Ways
By October 1973, the Attorney General answered to exactly one person: the President. That fact, quiet and unremarkable for nearly two centuries, became the entire mechanism of the Saturday Night Massacre.
What actually happened
- Nixon, seeking to stop the Watergate special prosecutor, orders Attorney General Elliot Richardson to fire Archibald Cox.
- Richardson has the legal authority to comply. He refuses on principle and resigns.
- Deputy AG William Ruckelshaus, next in line, also refuses and is fired.
- Solicitor General Robert Bork, third in the chain, carries out the order. Cox is fired.
- Public backlash is immediate and severe. The episode becomes a turning point that accelerates the case for impeachment.
Under the original 1789 draft
- Richardson is the Court's appointee, not the President's subordinate. Nixon has no lawful chain of command running from the Oval Office to the Attorney General's office.
- The order to fire Cox has no legal foundation to begin with — there is no valid authority for Richardson to comply with, so there is nothing to refuse.
- The crisis becomes a question of whether the President attempted to exceed authority he never held — a sharper, more immediately answerable legal question than an abuse of power he legitimately possessed.
- There is no cascade to a Deputy Attorney General or a Solicitor General, because the first link in the chain never forms.
- The specific sequence of resignations and firings that became known as the Saturday Night Massacre — and the public shock that helped turn opinion toward impeachment — does not occur in that recognizable form.
What the counterfactual removes is a single lever, not the crisis itself. Nixon's motive to end the Cox investigation doesn't disappear, and a President determined to interfere might have found another route — pressuring Congress over the prosecutor's funding or jurisdiction, for instance. What the struck clause forecloses is this specific, historically pivotal mechanism: a President ordering his own Attorney General to do something, and an Attorney General having the lawful power to obey.
The Honest Caveat
This is speculative history, not legal analysis of current law. It assumes a single clause survived unchanged and unchallenged for 184 years — through Jacksonian patronage politics, the Civil War, and the entire formation of the modern Department of Justice — any one of which could plausibly have overturned it long before 1973. It also assumes Nixon had no alternative path to the same end. Neither assumption is something history can confirm.
What the exercise does show cleanly is this: the Attorney General's subordination to the President was never a considered design. It was a silence in a 1789 statute, filled in by 184 years of unchallenged practice before it ever met a President determined to test it.
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