The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Appointment of Interim U.S. Attorneys
The attorney general can appoint interim U.S. Attorneys to successive 120-day terms of office unless the nominee is someone to whom the Senate has refused to give advice and consent by a vote either in committee or on the floor.
Alina Habba's 120-day term as President Trump's appointed Interim U.S. Attorney for the State of New Jersey recently expired without the Senate ever voting on her nomination. A panel of U.S. District Court Judges used a rarely invoked and unconstitutional federal statute to appoint a new and different Interim U.S. Attorney for New Jersey, Desiree Leigh Grace, who had been Ms. Habba's first assistant.
Attorney General Bondi fired the court-appointed Interim U.S. Attorney the day she was appointed, saying "This Department of Justice does not tolerate rogue judges—especially when they threaten the President's core Article II powers."
On Thursday, July 24, President Trump withdrew Alina Habba's nomination to be U.S. Attorney for New Jersey, and Attorney General Bondi then appointed her First Assistant in that U.S. Attorney's Office and also appointed her Acting U.S. Attorney for New Jersey for the next 210 days under the Vacancies Act, 5 U.S.C. § 3345 et seq.
I do not think it was necessary to do that. I think Interim U.S. Attorneys, whose 120-day appointments have expired without the Senate ever voting on their nominations, can be reappointed to an indefinite number of 120-day terms as Interim U.S. Attorneys by the Attorney General under 28 U.S.C. § 546 until and unless the Senate votes down their nominations and so long as they have been nominated for the office in question.
The 120-day term limit does not bar reappointment if done by district court judges. Given that cross-branch appointment of inferior officers is unconstitutional, as I will explain below, there is no reason why 28 U.S.C. § 546 ought to be read as precluding the reappointment of nominated U.S. Attorneys whom Senators do not have the votes to defeat but whose confirmations they are able to delay.
Attorney General Robert Jackson in his famous speech on the role of the federal prosecutor pointed out that from 1789 to the present-day U.S. Attorneys have always required Senate confirmation because of their "immense power" and because they need to win "an expression of confidence in [their] character by both the legislative and the executive branches of the government." Jackson's point is certainly true. But a Senate minority that lacks the votes to reject a nominee cannot be rewarded if, after 120 days, they have used Senate procedure to prevent a vote from taking place.
This issue is coming up all over the country right now because Senate Democrats refuse to allow floor votes on President Trump's nominees to be U.S. Attorney. The matter is thus of great practical importance in the District of New Jersey and in other Districts as well.
The President is the nation's Prosecutor-in-Chief, with the Attorney General as his subordinate. The President has, both domestically and internationally, what the British referred to as the Monarch's Power of the Sword, in contrast to the Legislature's Power of the Purse. It is the President, himself, who swears to "take Care that the Laws be faithfully executed" using the Power of the Sword domestically. The Supreme Court held in Seila Law LLC v. Consumer Financial Protection Bureau (2020) that all of "[t]he executive Power" must be exercised by officers or employees who are removable at will by the President at any time.
The power to prosecute is a core "executive Power" as those words are used in Article II, Section 1. Only the President or the Attorney General can designate an Interim U.S. Attorney who will and must use only the "executive Power." The office of Interim U.S. Attorney is not quasi-judicial, or quasi-legislative. It involves solely the exercise of executive power. This means that only the Attorney General can appoint Interim U.S. Attorneys, and the President or Attorney General can and should on principle fire any Interim U.S. Attorney appointed by federal district judges.
Yes, it is true that the federal statute, 28 U.S.C. § 546, that governs appointment of Interim U.S. Attorneys—under some circumstances—allows federal district court judges to appoint Interim U.S. Attorneys. Versions of this unconstitutional law have been in the U.S Code since the Civil War, although they have rarely been invoked. That portion of § 546 is unconstitutional under Seila Law and Trump v. Wilcox (2025). Section 546 reads (with the unconstitutional language marked in bold):
(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.
(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.
(c) A person appointed as United States attorney under this section may serve until the earlier of—
(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or
(2) the expiration of 120 days after appointment by the Attorney General under this section.
(d) 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.
Title 28 U.S.C. § 546(d) is unconstitutional under Seila Law because it allows the exercise of executive power by someone who has not been hired by the President or his Heads of Departments. It is also unconstitutional under the May 22, 2025, decision (on the so-called "shadow docket") in Trump v. Wilcox, which concluded that National Labor Relations Board Members and Merit Systems Protection Board Members had to be removable at will by the President, because they were exercising, in part, some portion of the President's "executive Power." Even setting aside the debate about removability of board members of supposedly independent quasi-judicial, quasi-legislative multi-member agencies, which were approved in Humphrey's Executor (1935), it has long been understood that, under the 1926 Myers v. United States precedent, all executive officers, such as a U.S. Attorney or an Interim U.S. Attorney, must be removable at will by the President or the Attorney General.
Since Interim U.S. Attorneys exercise exclusively executive power, two conclusions follow: First, 28 U.S.C. § 546(d) is unconstitutional insofar as it grants district judges the power sometimes to appoint officers who will exercise exclusively executive power. Second, Attorney General Bondi acted constitutionally when she fired the court appointed Interim U.S. Attorney.
Section 546(d) is also unconstitutional on Appointments Clause grounds for allowing a court appointed officer to exercise some portion of the President's "executive Power" in violation of Seila Law and of Trump v. Wilcox. Interim U.S. Attorneys are inferior officers whose appointments are governed by the following constitutional language:
[T]he 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.
Congress can delegate to a Head of a Department, like the Attorney General, the power to appoint an inferior executive branch officer to a congressionally created office, like the office of Interim U.S. Attorney. Or Congress can delegate to, for example, the Supreme Court, the power to appoint the Clerk of the Supreme Court, who is the officer of the Supreme Court of the United States responsible for overseeing filings with the court and maintaining its records, to a congressionally created office.
It is true that the text of the Inferior Officer Appointments Clause could be read as authorizing cross-branch appointments whereby judges can appoint Interim U.S. Attorneys, and the President or Attorney General Bondi could appoint the Clerk of the Supreme Court. The Clause does allow Congress to by "law" vest the appointment of inferior officer "as they think proper" in "the President alone, in the Courts of Law, or in the Heads of Departments."
It strains credulity, however, to assume that Congress could exercise its power to vest in the Courts of Law the power to appoint inferior executive branch officers, or that it could delegate to Attorney General Bondi the power to appoint inferior judicial branch officers like new Clerks of the U.S. Supreme Court.
This is an "Alice in Wonderland" absurd way to read the words "as they think proper." The far more likely meaning of those words is that Congress can delegate to the President, and not the Supreme Court, the power to hire the White House Chief of Staff or the White House Counsel who are inferior executive branch officers. Or it can delegate to the Supreme Court, and not to the President or Attorney General, the power to appoint an inferior judicial branch officer like the Clerk of the Supreme Court, or judicial employees like the nine justices' law clerks.
One might object that the President appoints Article III judges, who are judicial officers, so the Courts of Law should be able to appoint the White House Chief of Staff or the White House Counsel or Interim U.S. Attorneys who are executive inferior officers. But the President's power to appoint judges is constrained by the requirement that he must first nominate them, and the Senate must confirm them, before they can be appointed. Judges picking White House Chiefs of Staff, White House Counsels, or Interim U.S. Attorneys would not be constrained by the check of Senate confirmation, so the analogy fails.
Executive branch agencies do appoint Administrative Law judges (ALJs) who are inferior executive branch officers. But, in my opinion, that is only constitutional when a public benefit like social security disability benefits, or immigration into the U.S., or a suit for money damages against the U.S. is involved, as to which Congress has only partially waived its sovereign immunity. The disposal of public benefits in these cases is an exercise of executive power even though the ALJs who decide these cases have the prestigious but misleading title of "Judge."
The Supreme Court did uphold a court-appointed federal prosecutor in Morrison v. Olson (1988), but that case is no longer good law as to (1) its Appointments Clause holding; (2) its Removal Power holding; or (3) its cross-branch Appointments Clause holding. The Appointments Clause holding of Morrison was not followed in Edmond v. United States (1997) or in Free Enterprise Fund v. PCAOB (2010). The Removal Power holding of Morrison was not followed in Seila Law or in Trump v. Wilcox.
While the Supreme Court has not had the chance to pronounce specifically on the cross-branch Appointment of inferior officers like Interim U.S. Attorneys, it has made it clear in Seila Law and in Trump v. Wilcox that no inferior executive branch officer, who is appointed by the courts and not by the President or the Head of an executive Department, can ever exercise even a shred of the executive power. Yet executive power is the only power that court-appointed Interim U.S. Attorneys exercise. It is thus fair to conclude that the language allowing cross-branch appointment of inferior officers in Morrison is no longer good law.
Although the Supreme Court allowed the cross-branch appointment of minor inferior officers in Ex Parte Siebold (1880), in a brief casual construction, the better rule is that of Ex Parte Hennen (1839) where the Court held that,
The appointing power here designated, in the latter part of the section was no doubt intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged. The appointment of clerks of Courts properly belongs to the Courts of law; and that a clerk is one of the inferior officers contemplated by this provision in the Constitution cannot be questioned.
The rule of Ex Parte Hennen just quoted was demoted by Ex parte Siebold from the constitutional status to which Hennen meant it to apply to the status of mere guidance for Congress, though Siebold did not formally overrule Hennen. In my view, Hennen is clearly right, and Siebold is a much later and in my view erroneous construction of the constitutional text; so I think the Supreme Court should re-elevate Hennen to be the lead case on this question.
Since under Seila Law and Trump v. Wilcox, only the President or his agent the Attorney General can remove Interim U.S. Attorneys, who are not quasi-judicial or quasi-legislative officers, the rule of Hennen suggests that only the Attorney General has the power to appoint Interim U.S. Attorneys, which is what 28 U.S.C. § 546(a) says. To the extent Ex Parte Siebold suggests otherwise, it is no longer good law, as is the case with Morrison v. Olsen.
So, if the district court appointed Interim U.S. Attorney has been removed, how could Attorney General Bondi reappoint Alina Habba to ensure the running of the U.S. Attorney's office for New Jersey? In my opinion, Attorney General Bondi could have chosen to reappoint Alina Habba for another 120 days as Interim U.S. Attorney, since her initial appointment was not one to which the Senate had refused to give advice and consent. I do not think it was necessary to withdraw Habba's nomination and appoint her as Acting U.S. Attorney. All that happened to Alina Habba was that the New Jersey Senators refused to allow Alina Habba's nomination to be voted on by the full Senate. If her appointment is voted on and rejected by the Senate or at least by the Senate Judiciary Committee, her term ends immediately. But until and unless that happens 28 U.S.C. § 546(a) allows an interim re-appointment:
Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.
The statute nowhere says that the same person cannot be reappointed for another 120-day term, unless the Senate has refused to advise and consent to their nomination. Refusal to advise and consent requires a vote either in committee or on the floor. Delaying a U.S. Attorney's nomination vote to run out the 120-day clock on their service as Interim U.S. Attorneys is not a "refusal" of "advise and consent."
This situation differs from the unconstitutional appointments of Robert Mueller and Jack Smith to be Special Counsel because there was no statute that created the Office of Special Counsel, which they purported to hold, nor was there a statute that authorized the Attorney General to appoint a Special Counsel when Robert Mueller and Jack Smith were appointed. The Ethics in Government Act of 1978 sunset out of existence in 1999. It was replaced by an Attorney General Order governing appointment of Special Counsel's, which Gary Lawson and I explain is unconstitutional, as Judge Aileen Cannon held in an excellent 92-page opinion. Steven G. Calabresi & Gary Lawson, Why Robert Mueller's Appointment as Special Counsel is Unlawful?, 95 Notre Dame Law Review 87 (2019).
In Alina Habba's case, and in the case of other Interim U.S. Attorneys like her, there is both (1) a statute creating the office of Interim U.S. Attorney and (2) a grant of power to the Attorney General Bondi to appoint Interim U.S. Attorneys, so long as they have not been voted down by the Senate. There was thus no need to withdraw Habba's nomination when she could instead have been appointed to another 120-day term as Interim U.S. Attorney, at least until the Senate voted and refused to advise and consent to her nomination.
