Can a Federal District Court Appoint A New U.S. Attorney? Can the President fire a U.S. Attorney appointed by a federal court?

This question may soon become relevant in the District of Columbia.

|The Volokh Conspiracy |

On January 30, 2020, Attorney General Barr appointed Timothy Shea as acting U.S. Attorney for the District of Columbia. His appointment took effect on February 3, 2020. (Shea recently made news by filing a motion to dismiss the criminal information against Michael Flynn.) 28 U.S.C. § 546 empowers the Attorney General to "appoint a United States attorney for the district in which the office of United States attorney is vacant." That position will generally last "120 days." In early June, that temporary appointment will expire.

To date, President Trump has not made a nomination to fill the vacancy. What happens if no one is confirmed to that position? 28 U.S.C. § 546(d)  provides:

If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.

Can Congress allow courts to make appointments? The Inferior Officers Clause provides, "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."  And the courts have long held that U.S. Attorneys are "inferior officers." See Myers v. U.S. (1926) ("Finally, Parsons' case, where it was the point in judgment, conclusively establishes for this Court that the legislative decision of 1789 applied to a United States attorney, an inferior officer.") The Office of Legal Counsel has also concluded that U.S. Attorneys are inferior officers. (This analysis was relevant in discussions about whether special counsel Robert Mueller was an inferior officer.)

Have courts exercised this power under Section 546(d)? Yes. For example, in March 2017, President Trump fired Preet Bharara, the U.S. Attorney for the Southern District of New York. Over the next ten months, Bharara's deputy, Joon Kim, served as acting U.S. Attorney. In January 2018, Attorney General Sessions appointed Geoffrey Berman as the interim U.S. Attorney. That temporary appointment would run out after 120 days. In April 2018, SDNY selected Berman as U.S. Attorney. He continues to serve in that position. In that role, Berman oversaw the prosecution of Michael Cohen. President Trump has never nominated anyone for the office.

The District for the District of Columbia could select Timothy Shea in the same fashion that SDNY selected Berman. Or it could choose someone else. At Just Security, Melanie Sloan urges the court to choose the latter path.

Because a statute limits the tenure of interim U.S. attorneys appointed by the attorney general, the district court has an opportunity to convey the importance of the impartial administration of justice. Even if the court believes Shea has acted competently and with integrity as interim U.S. attorney, the events surrounding his appointment and the ensuing highly unusual prosecutorial decisions made to benefit the president's allies undermine public confidence in his leadership and in the office. It is critical that the court demonstrate a commitment to the impartial administration of justice by appointing a qualified, veteran career prosecutor to serve as interim U.S. attorney until a permanent replacement is confirmed by the Senate.

I see two important constitutional questions with this arrangement. First, is 28 U.S.C. § 546(d) constitutional? That is, can a federal district court appoint a U.S. Attorney when the President fails to? Several courts have answered yes.

Most recently, U.S. v. Young (D.N.M. 2008) held that this practice was constitutional. The District of New Mexico held that the District of New Mexico did not violate the separation of powers. (As best as I can tell, the case was not appealed.)

The court explained that there is a longstanding practice in which courts have appointed prosecutors.

In fact, in 1787 no state provided the executive officer unfettered control over the appointment and removal of prosecutors. Myers v. United States (1926) (Brandeis dissenting). Indeed, at the time the Constitution was ratified, and for decades thereafter, several of the original states provided for the appointment of prosecutors by either the judiciary or legislature.3Although the Federal Judiciary Act of 1789 ultimately gave the appointment to the executive, it originally provided for the judicial appointment of United States Attorneys.4 … Indeed, for virtually the entire period since the Civil War,5 Congress, through statutes similar to 28 U.S.C. § 546, specifically authorized the judiciary to fill any interim vacancy in the office of the United States Attorney.

Young urged the court to follow Justice Scalia's "constitutionally clairvoyant" dissent in Morrison v. Olson. The district court, of course, declined that invitation.

The majority in Morrison, with only Justice Scalia dissenting, clearly sustained the judicial appointment of the independent counsel against a challenge virtually identical to that at bar. In that case, a special division of judges was authorized by Congress to appoint an independent counsel to investigate malfeasance of high level government officials under the Ethics and Government Reform Act. Even though the judges retained the right to oversee several aspects of the independent counsel,7 the Court found no violation of the separation of powers principle.

Indeed, Chief Justice Rehnquist cited 546(d) in Morrison as grounds to uphold the Independent Counsel statute:

The Morrison Court also specifically rejected Defendant Young's argument that it would be "incongruous" for judges to appoint a prosecutor. The District of Columbia Circuit had invalidated the judicial appointment of the independent counsel on this theory.  In re Sealed Case, 838 F.2d at 494. In reversing the Circuit, Chief Justice Rehnquist, pointed out that "[l]ower courts have also upheld interim judicial appointments of United States Attorneys, … and Congress itself has vested the power to make these interim appointments in the district courts." Morrison, 487 U.S. at 676, 108 S.Ct. 2597 (internal citations omitted).

Young cites several other courts that reached the same result. For example, U.S. v. Gantt (9th Cir. 1999).

There is a second constitutional question: can the President remove a U.S. Attorney who was appointed by the federal court? Young maintains that the President retains the removal power.

However, nothing in Section 546(d) confers upon district judges any supervisory power over an interim United States Attorney after his appointment. Rather, this supervision plainly remains in the Executive Branch where it has resided for more than a century…  Indeed, the Congress has directed that all litigation in which the United States is involved is under the direction of the Attorney General, 28 U.S.C. § 516, and that the Attorney General "shall direct all United States attorneys, assistant United States attorneys, and special attorneys…." 28 U.S.C. § 519. And it goes without challenge that the power to remove a United States Attorney is vested exclusively in the President, who may exercise that power for any reason… Nothing in the plain language of Section 546(d) grants the district court any power to infringe upon the President's prerogative and remove an interim United States Attorney after he is appointed. In re Farrow, 3 F. 112, 116 (C.C.N.D.Ga.1880) (predecessor statute authorizing judicial appointment of interim United States Attorney "was not to enable the circuit justice to oust the power of the president to appoint, but to authorize him to fill the vacancy until the president should act, and no longer"). Indeed, the specific language of 28 U.S.C. § 546(d) allows the judicially appointed United States Attorney to serve only "until a presidentially appointed United States Attorney is qualified."

There is a general principle that the President can only remove those officers he appoints. A person appointed by the Attorney General can only be removed by the Attorney General. (For this reason, President Nixon had to ask three Attorneys General to remove the special prosecutor Archibald Cox; he did not attempt to do so himself)  I think ultimately the President has the power to fire a U.S. Attorney appointed by the courts, but the analysis is more complicated than the District Court here acknowledged.

Of course, President Trump can obviate all of these problems by appointing his own U.S. Attorney. But he has failed to do so. Perhaps those equities should cut against the President's case. However, cases like Free Enterprise Fund held that the President cannot relinquish his own powers. In other words, the courts cannot punish a President, who fails to use his appointment power, by hamstringing his removal power. The President cannot be estopped from exercising his own constitutional authority. There is no chutzpah exception to Article II.

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  1. “Of course, President Trump can obviate all of these problems by appointing his own U.S. Attorney.”

    Another interim one, I assume, since the Senate is refusing to be in actual session to act on nominations, but determined to be in nominal session to prevent recess appointments?

    The real chutzpah we need here, is for the President to exercise his power to call the Senate into a special session to act on nominations.

    1. You raise another issue, the “advice & consent of the Senate” — and how does a court-appointed US Attorney avoid that process?

      1. Congress can authorized appointment of inferior officers without connfirmation.

        From the appointments clause:

        Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

    2. So the complaint you’re making is the obstructionist Mitch has gotten carried away and started obstructing his own party’s President? If only there were something Republican voters could do about it.

      1. Well, duh: Once you’re satisfied that a given instance of “obstruction” is legal, the only remaining question is whether or not it’s desirable, and that hinges pretty heavily on what is being obstructed.

        I wouldn’t say that Mitch has gotten “carried away”; Rather, I’d say his agenda has never aligned very well with the interests of Republican voters, and the contrast is becoming particularly sharp now.

        Yes, it’s up to those voters to do something about him. All I suggest Trump do is make the nature of Mitch’s agenda crystal clear, so the voters will know just what they’re voting on.

        1. So you’re suggesting that President Trump should begin actively working to undermine members of his own political party? Are you sure you understand the nature and meaning of “party” in this context?

          I mean, I wouldn’t be crying over Mitch being thrown under the bus, but the point these fellows have been working under is the assumption that they’ll help each other to undermine America and Americans to their own advantage, not free-lance.

          1. “So you’re suggesting that President Trump should begin actively working to undermine members of his own political party?”

            No, I’m suggesting he should ALSO begin actively working to undermine members of his own political party. He wouldn’t be the one initiating it here, the GOP establishment just barely disguised their contempt for Trump during the general election, and has been undermining him in multiple ways for the last several years.

            Undermining McConnell would just be returning the favor.

    3. > the Senate is refusing to be in actual session to act on nominations

      Interestingly, the Senate is actually in session and could act on nominations. One of the Corona bills was passed with six Senators attending.

      The Senate rules say that quorum isn’t an issue unless it is raised by one of the Senators present. And from what I’ve read on the subject, if the Senate says it has quorum then the Court will agree.

      So in theory a small group of Republicans could meet in secret, accept the nomination, make whatever procedural votes are required to overrule regular order concerning nominees, and approve the nomination.

      It’s ridiculous, but apparently consistent with the Constitution.

      1. No, it’s ridiculous, and utterly inconsistent with the Constitution, but it’s consistent with court rulings.

    4. The senate acted on nominations within the last week, did they just start refusing to be in session?

    5. The real chutzpah we need here, is for the President to exercise his power to call the Senate into a special session to act on nominations.

      Setting aside the bizarre claim that Mitch McConnell is refusing to act on Trump’s nominees, the president has no such power.

      1. Article II, Section 3: “he may, on extraordinary occasions, convene both Houses, or either of them,”

        Really, shouldn’t you read the damn thing before writing stuff like that?

        1. Seems like you’re suggesting that the President can not only force them to convene (which they assert they already are), but can tell them what business they have to conduct? If so, I think Merrick Garland would like a word.

          1. He can certainly force them to convene, and doing so when they falsely claim they already are in session would set up an interesting court fight, but he can at best suggest what business they have to conduct.

            And their conspicuous failure to conduct it would make their priorities clear.

  2. I don’t like the idea of the Judiciary appointing Executive officers, inferior or not, for any reason. I don’t want the Judiciary poaching on Legislative or Executive branch powers.

    The Judicial branch is powerful enough, thank you very much. In fact, too much so.

    1. Doesn’t that constrain Congress’ ability to delegate appointment who they believe to be best to make the decision?

      1. I understand his reasoning, but not liking the idea isn’t really a legal argument. It just means that he doesn’t like the law, and that’s fine.

        There are a lot of laws I just don’t like, too. Doesn’t mean squat as far as their constitutionality, if all I’ve got for disagreeing with them is not liking the policy.

      2. Sarcastr0…Yeah, it would. It would appear my logic leads me to the conclusion that Morrison was wrongly decided.

        To me, this is really a separation of powers issue.

        1. So is your doctinal distaste for allowing the courts to act where the President can’t or won’t sufficiently strong to overcome the fact that the Constitution explicitly permits it?

        2. That’s a fair reading of separation of powers, though I think Morrison is not unreasonable either.

          I’m somewhat in equipoise on the issue.

          1. Morrison is a VERY different issue than this one and is really a red herring here. In Morrison, the principal issue was not the appointment of a prosecutor by judicial officers (which has a long history), but the fact that the prosecutor, i.e., the independent counsel, acted largely unconstrained by the executive branch and the President could not fire him/her. The President, as head of the Executive Branch, was pretty much cut out of the process entirely. And Scalia’s dissent, whether one agrees with it or not, was not particularly concerned about the initial appointment, but by the unconstrained power of the independent counsel.

            1. And to expand on that, the argument goes, because of the immense power exercised by the Independent Counsel, he or she was not an “inferior officer” and thus had to be appointed by the President. Unlike a US Attorney, the Independent Counsel was authorized to exercise the “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice.”

              No US Attorney can exercise that power (setting aside appointment as a special prosecutor but they are still answerable to the AG or DAG, if AG is recused).

              1. Leaving a problem if there appears to be reason to want to prosecute the President and AG, whether separarely or in concert. In theory, Congress could do so on its own, using its own authority, but that ability is constrained if either suspect has allies among the legislators.

        3. “Sarcastr0…Yeah, it would. It would appear my logic leads me to the conclusion that Morrison was wrongly decided.”

          So how do you get around the plain text of the appointment’s clause?

          “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

          1. Yeah Matthew, I think I see the issue you’re pointing out. The problem I have here is I don’t think the Congress should be in the business of appointing Executive officers that the Executive cannot remove for any, or no reason.

            As much as I prefer the Congress to be the ‘primum inter pares’ branch, I don’t think they (and especially the Judiciary) should be in the business of actually appointing Executive officers. Advise and consent…oh yeah, I think that is a must.

            I would like to better understand what the Framers intended with this clause. I shudder to think they ever intend the clause for something like the Independent Counsel.

            1. In all likelihood they intended for the judiciary to be selecting their own bailiffs and the like. But the text is still what it is.

  3. That is, can a federal district court appoint a U.S. Attorney when the President fails to? Several courts have answered yes.
    This is not the convincing argument that lawyers and judges may think it is.

    1. The convincing argument isn’t “that” the courts have answered yes, but rather “why” they have answered yes. Once you conclude that US Attorneys are “inferior officers”, the answer is directly driven by the Constitution.

      “but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”

      Trivially, what the Constitution directs can’t be unconstitutional, the ONLY question here is whether U.S. Attorneys are “inferior officers”. I find this reasoning persuasive.

    2. Whether or not Presidents can fire inferior officers appointed by law by somebody else is a much more interesting topic.

      1. I should add that my own conclusion is that they can, in as much as “The executive Power shall be vested in a President of the United States of America.”

        Officers you can’t fire are officers who don’t have to obey your orders, and Congress can’t, constitutionally, alienate any part of the executive power from the President.

        1. Although it would love to try — and that is what I think some people would like to see happen here.

          However, there is the ‘National Emergency’ and why can’t Trump argue that the 120 days does not toll during it? After all, even SCOTUS has given extensions on things — why wouldn’t it apply here?

          1. ” why can’t Trump argue that the 120 days does not toll ”

            He can argue whatever he wants, and he’s made some interesting aruments, but that’s not the same thing as the argument being good, or successful. He seems to think that the President has royal prerogatives, and doesn’t like to be corrected on this topic.

            1. Name one past President, with the possible exception of Jerry Ford, who didn’t think that he had royal prerogatives. Obama sure did, Eric Holder was in contempt of Congress…

              I’m asking a serious question here — what does a “state of emergency” actually mean — the statute was written on the presumption that the Soviets had nuked us, hence there wasn’t a Senate as the Senators were all dead, and wouldn’t be replaced in 120 days.

              1. First, you’ve said many times you think this is all fake. So you want the President to get in on the scam?

                Second, explain the causal connection. Why does the emergency require this additional power? Emergency isn’t a magic word.

              2. “Name one past President, with the possible exception of Jerry Ford, who didn’t think that he had royal prerogatives.”

                Washington. And, of course, all the others who weren’t recorded saying “the authority of the President is absolute”, as Trump was. Seems like this is another briefing he didn’t pay much attention to.

            2. Just do what the Michigan governor did. If you get sued for asserting royal prerogatives then you close the courts.

        2. “Officers you can’t fire are officers who don’t have to obey your orders”

          Being fired is one way a federal officer can leave office. Don’t forget that the President can give orders directly to Seal Team six.

          1. Presidents ordering the assassination of American citizens is, thankfully, something that went out of style in January 2017.

            1. as far as you know.

    3. I find “the Constitution explicitly says it can” to be a very persuasive argument.

    4. This is not the convincing argument that lawyers and judges may think it is.

      Well, considering you have to win your cases in court, I’m definitely more convinced by it than by anything some nobody named “Toranth” says on the Internet.

  4. So what happens if the President removes a USA and the court immediately reappoints him or her?

    1. Can Barr himself act as the US Attorney?

      Maine’s Paul LePage did something similar — knowing the legislature wouldn’t approve who he wanted as Education Commissioner, he essentially appointed himself — said there wouldn’t be one and he’d directly supervise the department .

      1. Well , King George III did act as his own prime minister for a time. Of course, we don’t have a king. Yet.

        1. “. Of course, we don’t have a king. Yet.”

          Shh. Don’t tell His Royal Orangeness, King of the Oompa-Loompas.

      2. The AG probably could prosecute a case personally if he wanted to.

        The problem is that there isn’t just one US Attorney. it’s a regional office, there is a US Attorney for each federal judicial district except for Guam and the Northern Marianas which share one US Attorney.

        1. Actually, there are a whole bunch of assistants in each office.

    2. It can’t.

      Once the US Attorney is removed, there’s a new vacancy. The court only gets a chance to fill it after the attorney general makes another interim appointment and a further 120 days go by without the confirmation of a presidential appointee.

      1. YOU say it can’t. I don’t know how persuasive that is if a court says it can.

  5. I think there is a serious separation of powers problem with a court appointing a prosecutor that appears before the very court that appointed them. By appointing a person to such a prestigious and powerful position, the court is putting a stamp of approval on that person. And this threatens to undermine the objectivity of the tribunal when that person argues before the court. Will the court not be tempted to hold back in its criticism of the performance of that person, since if they are too harsh, they are, in effect, criticizing themselves for appointing them?

    This is very different than the situation where the courts appoint inferior officers that are primarily involved with administering the court system itself.

    1. ” Will the court not be tempted to hold back in its criticism of the performance of that person, since if they are too harsh, they are, in effect, criticizing themselves for appointing them?”

      I’ve read some dissents that are plenty critical of the majority opinion, and then, of course, there are times when appeals courts overturn their own precedent. I don’t think “avoiding appearing critical of themselves” is a major concern amongst the judiciary.

      1. I think you are right to a degree. But I think bias operates in more subtle ways when it comes to more difficult questions of interpretation.

        Courts ought not be appointing prosecutors. I don’t see any real upside for giving them any role in such selections. But I do see a downside. The bias may not be overwhelming, but I do think it would tend to exist.

        If you were a criminal defendant, how would you feel when your case is argued to the judge, knowing that the judge had a role in picking the prosecutor? Wouldn’t you tend to feel that they were on the same team?

        This is not just about an actual conflict, but also the appearance of a conflict.

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