The Volokh Conspiracy
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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.