The Volokh Conspiracy
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The Attorney General Can Put Her Own Legal Team in Place—through U.S. Attorneys in New Jersey and Elsewhere
Acting through through Section 546, or temporarily through the Federal Vacancies Reform Act, the Attorney General is entitled to appoint U.S. Attorneys for the District of New Jersey and all other federal judicial districts. If done properly, such appointments preempt any need for judges to appoint U.S. Attorneys. But it is important that the President submit a nominee for the position for Senate confirmation.
Recently questions have swirled around how the Attorney General can appoint an "interim" U.S. Attorney before the Senate has acted to permanently fill the position, with a focus on the New Jersey position that has been filled temporarily by Alina Habba. A statute (28 U.S.C. 546) allows the Attorney General to make an interim appointment for 120-days, but then provides that the district judges in the district can step in to make a further appointment. On Saturday, VC co-blogger Steve Calabresi questioned the constitutionality of this statute, contending that such cross-branch appointments by the Judiciary of an Executive Branch officer violates separation of powers principles. Yesterday, I rebutted his argument, explaining why the Constitution's Appointments Clause allows Congress to set up this approach to interim appointments. And, if my constitutional analysis of § 546 is correct, then only statutory questions remain about how an interim U.S. Attorney can be appointed.
But Ms. Habba very recently resigned her position as "interim" U.S. Attorney to become "acting" U.S. Attorney. Is this permissible? Over the last 24 hours, this seemingly technical academic issue has suddenly assumed tremendous practical importance. As the New York Times is reporting in a lead story, "New Jersey Criminal Cases Screech to a Halt as [N.J. U.S. Attorney] Habba's Authority is Challenged." In this post, I address the current controversy surrounding the authority of the New Jersey U.S. Attorney. And, more broadly, I also attempt to set out the relevant statutory framework and policy issues surrounding appointments to the important U.S. Attorney positions.
To make a long story short, in my view, Ms. Habba is lawfully the acting U.S. Attorney in the District of New Jersey, at least for a short period of time, via the somewhat circuitous route of having been appointed by the Attorney General to be the First Assistant in the Office, and then being elevated to the Acting U.S. Attorney via the Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq. But one problem with this approach is that, while seemingly authorized by statute, it appears to have the potential to deprive the Senate of its opportunity to vote on the U.S. Attorney selection for a lengthy period of time. Rather than relying on the FVRA, a more straightforward path for the Attorney General is to simply appoint an "interim" U.S. Attorney every 120 days, under § 546—while the President simultaneously nominates that person to be the permanent U.S. Attorney. Indeed, Ms. Habba could now be reappointed as the interim U.S. Attorney and, simultaneously, her nomination resubmitted to the Senate. Under this approach, the Senate has an opportunity to speak to nomination, while at the same time the Attorney General is entitled to put her own legal team in place in the important U.S. Attorney positions around the country.
To set the stage for this question, it is useful to recount that the U.S. Attorneys for each of the 94 federal judicial districts (such as the District of New Jersey) are the top federal prosecutors. The U.S. Attorneys are political appointees, acting under the direction of the Attorney General (currently, of course, Attorney General Pam Bondi). Because of the importance of U.S. Attorneys, they are nominated for their positions by the President and then must be confirmed (or disapproved) by the Senate.
In recent years, following the election of a new President, it has become common for existing U.S. Attorneys to quickly resign and be replaced, particularly where (as happened in the last election) the new President is from a different political party than his predecessor. That replacement process can take time, as the new President must identify an appropriate replacement, and then nominate the replacement for the Senatorial advice and consent process.
In New Jersey, following the election of President Trump, in December the Biden-appointed U.S. Attorney for New Jersey (Philip R. Sellinger) resigned. As the Trump Administration transitioned into office and after Attorney General Bondi was confirmed, on March 24, 2025, Alina Habba was appointed as the "interim" U.S. Attorney for New Jersey. And President Trump submitted her nomination to become the permanent U.S. Attorney.
As I have discussed, the statute governing interim U.S. Attorneys (28 U.S.C. § 546) contains a 120-day time limit on Attorney General appointments. Since March 24, Alina Habba had been serving in that interim position, while her nomination to become the permanent U.S. Attorney was pending before the Senate. In the past, it has been common for interim U.S. Attorneys to remain in their positions until the Senate has acted, one way or the other, on their nominations. But over the last week or so, as Ms. Habba's interim, 120-day term was drawing to a close, the district judges for the District of Jersey entered a brief order declining to extend her term. Instead, citing their authority under § 546(d), the judges appointed Ms. Habba's First Assistant (Desiree Leigh Grace) to the interim U.S. Attorney position.
The Trump Administration quickly responded to keep Ms. Habba in the position. First, the President withdrew Ms. Habba's nomination to be the U.S. Attorney, a step apparently designed to clear the path for using the FVRA. And then Attorney General Bondi appointed Ms. Habba to be the First Assistant in that U.S. Attorney's Office. This appointment meant that automatically, by operation of law, Ms. Habba became the Acting U.S. Attorney for the District for up to the next 210 days, pursuant to the Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq. The Attorney General also removed the First Assistant (Ms. Grace) from her (potential) court-appointed interim U.S. Attorney position.
After reading this complex procedural history, some might wonder whether this case is some sort of New Jersey machination, unlikely to recur elsewhere. But as Calabresi recounted in his original post, this issue is not confined to The Garden State. Senate Democrats are reportedly slow-walking the President's U.S. Attorney nominees, with negotiations on-going to break the impasse. As of a few days ago, only a dozen nominees have moved past a preliminary committee vote and not a single nominee has received a confirmation vote on the Senate floor—even though the Presidential election was more than eight months ago. So issues regarding the appointment process for the 93 U.S. Attorneys, whether it be on an "interim," "acting," or permanent basis, have tremendous practical importance. (For an excellent recent article differentiating among the three categories, see James A. Heilpern, Interim United States Attorneys, 28 George Mason L. Rev. 187 (2020) (calling the current situation "a mess").)
The recent use of the Federal Vacancies Reform Act to fill the New Jersey slot might serve as a roadmap for the Trump Administration to follow in other districts. But the FVRA's scope is debated. And, more important, the Act's constitutionality has also been seriously questioned. For example, Justice Thomas has concluded that "[c]ourts inevitably will be called upon to determine whether the Constitution permits the appointment of principal officers pursuant to the FVRA without Senate confirmation." N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 318 (2017).
In the last few days, these seemingly arcane appointment issues have come to a head in New Jersey. A federal criminal defendant in New Jersey has already challenged Habba's appointment under the FVRA, arguing that the statute explicitly prohibits individuals whose nomination have been submitted to the Senate from serving in an acting capacity for the same office. Let's consider this narrow statutory argument.
The relevant provisions in the FVRA provide:
(a) If an officer of an Executive agency … whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—
(1) the first assistant of the office such officer shall perform the functions of the duties of the office temporarily in an acting capacity …
(b)(1) … a person may not serve as an acting officer for an office under this section, if—
(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person—
(i) did not serve in the position of first assistant to the office of such officer; or
(ii) served in the position of first assistant to the office of such officer for less than 90 days; and
(B) the President submits a nomination of such person to the Senate for appointment to such office.
5 U.S.C. § 3345 (emphasis added).
According to this defendant, this last (highlighted) provision "explicitly prohibits" Habba from serving as the Acting U.S. Attorney for the District of New Jersey because the President had months earlier submitted her nomination to the Senate for that same position—even though the President has now withdrawn her nomination. The defendant's argument is joined by Georgetown law professor Steve Vladeck, who argues on social media that the "President can't appoint the 'first assistant' to be the acting officer if her nomination was 'submitted,' not just if it's 'pending.' Withdrawing the nomination doesn't change the fact that it was submitted."
I believe Habba is properly serving as the Acting U.S. Attorney for the District of New Jersey, by operation of the FVRA, at least for a short period of time. The key question being litigated in her case is whether a person is permanently barred from serving as an acting U.S. Attorney after the President "submits a nomination of such person" to the Senate. But the statute's plain language does not create a disability after a nomination "was submitted," as Vladeck suggests. Instead, the statute uses the present tense: a disability exists when the President "submits a nomination." Under standard, recommended principles of legislative drafting, the present tense is used "to express all facts and conditions required to be concurrent with the operation of the legal action," as Bryan Garner explains in his excellent treatise, Garner's Dictionary of Legal Usage 536 (3d edition 2011) (emphasis added). Now that the President has withdrawn Habba's nomination—i.e., is no longer submitting her nomination—the condition of her nomination being submitted to the Senate is no longer concurrent with the legal actions she is taking as the U.S. Attorney.
This interpretation of the statute makes common sense. Presumably Congress did not want a person to serve as the "acting" U.S. Attorney while that same person's nomination had been submitted to the Senate. Before that person can act as the U.S. Attorney, that person should go through the normal Senate confirmation process. But the fact that the President had earlier submitted a nomination should not create a disability for temporary service as the acting U.S. Attorney—months, years, or even decades after an earlier nomination that the Senate never acted upon.
Moreover, it makes no difference to Ms. Habba's ability to serve as the "acting" U.S. Attorney that she had previously served as the "interim" U.S. Attorney under § 546. The Justice Department's Office of Legal Counsel (OLC) has opined that the two statutes (the FVRA general provisions on "acting" officials and § 546's specific provisions on "interim" U.S. Attorneys) "can operate in sequence," with an official first being appointed under one statute and then later under the other.
Nor does it make any difference how the vacancy that Ms. Habba is filling arose. The FVRA drafters apparently intended to allow the filling of even self-created vacancies. During a floor debate, both Senators Thomas and Byrd stated that vacancies created by terminations were examples of § 3345(a)'s "otherwise unable to perform the functions and duties of [such] office" language. See Guidance on Application of Federal Vacancies Reform Act of 1998, at 61 (1999) (noting that during a floor debate Senators Thomas and Byrd stated that firing was an example of not being able to perform one's duties under 5 U.S.C. § 3345(a) (discussed in Note, Justin C. Van Orsdol, Reforming Federal Vacancies, 54 Georgia L. Rev. 297, 309 (2019)). In fact, this broad language was specifically chosen to "make the law cover all situations" because, under Doolin Security Savings Bank v. Office of Thrift Supervision, the original Vacancies Act's language did not apply to officers who were fired. See 139 F.3d 203, 207 (D.C. Cir. 1998) ("[I]t becomes clear that the [original Vacancies Act] contemplates only the death, resignation, illness or absence of someone appointed to the position by the President." (emphasis added)), superseded by statute, Federal Vacancies Reform Act of 1998, Pub. L. No. 105–277, discussed in 144 Cong. Rec. S12810, S12823 (daily ed. Oct. 21, 1998) (statement of Sen. Thompson), as summarized in Note, supra, at 308 & nn.69-71.
For all these reasons, I believe that Habba is properly serving today as the acting U.S. Attorney for the District of New Jersey, at least temporarily for a short time until the Attorney General decides who should be nominated to fill that spot permanently. And any question will be resolved relatively quickly. The statutory issue is already being reviewed by the courts and is simply a question of reading several sentences in the FVRA. Nonetheless, the ramifications are significant, as the likely remedies for a determination that Habba has been improperly appointed is new trials and proceedings. See Heilpern, supra, at 210-11 (citing Lucia v. SEC, 585 U.S. 237 (2018)).
But a broader issue is that the FVRA maneuver has forced the President to withdraw Habba's nomination, not only depriving the President of the chance to have his selected nominee considered but also the Senate of an opportunity to vote on her confirmation. This absence of a possible Senate confirmation vote raises the constitutional question identified by Justice Thomas above—i.e., whether the FVRA is an impermissible abrogation by the Senate of its advice and consent function. There are also other statutory questions about the FVRA that this (already lengthy) blog post does not consider, such as whether the FVRA's general provisions for all Executive Branch positions effectively cross-references and makes applicable § 546's more specific provisions for filing vacant U.S. Attorney's positions in particular. See 5 U.S.C. § 3347(a)(1)(A). Indeed, it is interesting to observe that the FVRA was intended to limit Executive Branch power, and is now apparently being used as an expansion of the Attorney General's power. Cf. Ross E. Wiener, Inter-Branch Appointments After the Independent Counsel: Court Appointment of United States Attorneys, 86 Minn. L. Rev. 363, 439 n.352 (2001).
Like Calabresi, I believe that the President (and his Attorney General) need not resort to the complexities of the general provisions of the FVRA to put his chosen U.S. Attorneys into place. Instead, I believe that the Attorney General posses more straightforward authority under § 546 (specifically governing appointment of U.S. Attorneys) to make, first, an "interim," 120-day appointment while a Senate confirmation is pending. And then, if the Senate has failed to Act to make the interim appointment a permanent one, the Attorney General can make successive interim appointments until the Senate makes its decision. If the Attorney General is able to use that specific statute to appoint the President's nominees as "interim" U.S. Attorneys, there is no need for the Attorney General to resort to the FVRA to put in place "acting" U.S. Attorneys. And the Senate's role is respected if the interim U.S. Attorney's nomination is simultaneously provided to the Senate for its decision.
In evaluating the Attorney General's authority to appoint interim U.S. Attorneys under § 546, it is useful to begin with the statute's text:
(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.
Under the statute, the Attorney General can obviously put the President's U.S. Attorney nominees in place initially for 120 days. Historically, this time would have usually been sufficient to then have the nominee confirmed (or rejected) by the Senate. But as noted above, in the current contentious political environment, confirmations within 120 days are, apparently, no longer the norm.
So if the 120-day time period expires, the obvious question becomes: what happens next? One approach the Attorney General can take is to simply reappoint the previous interim U.S. Attorney to a new, successive 120-day term. On this issue, I agree with Calabresi's conclusion that successive appointments are permissible. But whereas Calabresi seemed to hinge his argument on the unconstitutionality of § 546(d), I believe that the statute is constitutional and also permits the Attorney General to make such successive appointments. To be sure, my interpretation may render the judicial appointment provisions in the statute only rarely applicable. But the statute's text and the Constitution's structure support this conclusion. And the bottom line result makes perfect sense: The President, working through his Attorney General, is able to put his legal team in place to execute his policies.
In years past, the Justice Department has seemingly taken differing positions on whether such successive appointments are consistent with the statute. In November 1986, shortly after Congress adopted § 546 in its current form, then-Deputy Assistant Attorney General Sam Alito explained in a memorandum to the Department's Executive Office for U.S. Attorneys that a second appointment by the Attorney General would be inappropriate because "[t]he statutory plan discloses a [c]ongressional purpose that after the expiration of the 120-day period further interim appointments are to be made by the court rather than by the Attorney General." See Ross E. Wiener, Inter-Branch Appointments After the Independent Counsel: Court Appointment of United States Attorneys, 86 Minn. L. Rev. 363, 402 (2001) (describing the memorandum).
But in a later interpretation, the Office of Legal Counsel (then headed by Chuck Cooper) explained that "[i]t could be argued that, after the removal by the President of a court appointed United States Attorney, the power to appoint an interim United States Attorney shifts back to the Attorney General, because the court's power of appointment is conditioned on the expiration of a 120-day appointment by the Attorney General." Memorandum from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, to Arnold I. Burns, Deputy Attorney General (Apr. 15, 1987) (quoted in Wiener, supra, at 402 n.179). [Disclosure: In 1987, I worked for DAG Burns as an Associate Deputy Attorney General. I don't recall working on this issue.] Interestingly, from what I can tell from the description of these two memoranda (from Alioto and Cooper), it was not the Department's position during the Reagan Administration that § 546(d) was unconstitutional.
As suggested by the Cooper memorandum, a straightforward strategy to avoid judicial appointments would be for the interim U.S. Attorney to be removed (or resign) on, let's say, 119 days into the 120-day term. Thereafter, because the U.S. Attorney position would be "vacant" under § 546(a), the Attorney General would be entitled to appoint an interim U.S. Attorney. Nothing in the statute blocks the Attorney General from appointing the same person who was previously the interim U.S. Attorney (assuming that the interim U.S. Attorney had not been rejected by the Senate). And because the first 120-day term never "expired" under § 546(c)(2), no occasion for a judicial appointment would arise.
This strategy appears to be consistent with the statute's plain language. But as then-Deputy Attorney General Alito suggested, the "congressional purpose" might have been to turn appointments over the Judiciary after the initial 120-day period.
Alito's congressional purpose argument from 1986 is supported by subsequent developments surrounding the statute. As I noted yesterday, in 2006 Congress enacted complete Justice Department control over interim U.S. Attorneys for an unlimited period of time. See USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, tit. V, sec. 502, 120 Stat. 246 (2006). But shortly thereafter, controversy arose about how certain U.S. Attorney's had been removed from their offices. And, the next year (2007), Congress responded by enacting legislation—sometimes identified as the "Preserving U.S. Attorney Independence Act"—which reenacted the pre-existing law. The legislation restored the 120-day limit and judicial appointment provision that remain in the law today (as quoted above).
The 2007 congressional re-enactment of § 546(d) could possibly be viewed as blocking successive appointments. The House Report on the interim appointment of U.S. Attorneys critically observed that the Congressional Research Service (CRS) had "identified several instances where the Attorney General made successive interim appointments pursuant to [the pre-2006 version of] section 546 of either the same or different individuals. For example, one individual received a total of four successive interim appointments." H. Rep. 110-58 at 6; see also House Hearing at 138 (CRS statement). And the issue of successive appointments led to at least one court case considering the issue, with the case upholding the Attorney General's second, successive U.S. Attorney appointment. See In re Grand Jury Proceedings, 671 F.Supp. 5 (D. Mass. 1987).
So Congress must have been aware of the successive appointments issue. Indeed, the CRS warned Congress that if it simply put back in place the pre-existing language, it could "give rise to a dynamic whereby the advice and consent function of the Senate could be avoided to a significant degree even under the prior version of section 546."
But did Congress actually do anything to block successive appointments? No. In (re)enacting § 546, all Congress did was (re)adopt the earlier language. Compare Pub. L. 110-34, section 2 (June 14, 2007) with Public L. 99-646, section 69 (Nov. 10, 1986).
Thus, it seems that Congress left the door open for successive appointments of an interim U.S. Attorney, even appointments of the same person. As the CRS presciently warned, that was not only a theoretical possibility but the actual practice under the previous language. If Congress wanted to change that practice, it needed to change the statute's language. While its is arguable that the statute's "purpose" was to effect change, the plain language controls. And the statute's plain language is the same as the earlier law, where successive interim appointments had been made.
Supporting this argument about the permissibility of successive appointments, as Calabresi notes, is the fact that the 120-day term limit does not bar reappointment if done by district court judges. If judges outside the Executive Branch have the power to reappoint the same person to an Executive Branch position, it is hard to see why the same power does not extend to the Attorney General, who is inside the Executive Branch.
Finally, it is worth considering the argument that § 546(d) strips the Executive Branch of any authority to make an interim U.S. Attorney appointment after the 120 days expires. In just the last two days, a New Jersey criminal defendant has advanced this argument. But the argument immediately founders on the statute's text. Judicial authority to appoint an interim U.S. Attorney only exists "until the vacancy is filled." 28 U.S.C. § 546(d). By definition, a successive appointment "fills" the vacancy. And note that the statute requires only that the vacancy be filled, not that the Senate has confirmed a new U.S. Attorney.
If my reading of § 546 is correct, then the Attorney General can effectively prevent any judicial appointment of interim U.S. Attorneys through successive appointments. Some may argue that this is a flaw in the statute (or in my reading of the statute). But it is useful to step back and ask whether judicial appointments of (interim) U.S. Attorneys are good or bad?
For reasons that I explained yesterday, I don't believe that it is unconstitutional for Congress to provide for judicial appointment of U.S. Attorneys. But for all the reasons that Calabresi explained earlier in arguing for the statute's unconstitutionality, it is certainly unusual to have a cross-branch appointment by the Judiciary of an Executive Branch officer. In some extreme cases, such cross-branch appointments might even be unconstitutional. The Supreme Court has held that Congressional action to vest the appointment power in the Courts would be improper if there was some "incongruity" between the functions normally performed by the Courts and the performance of the duty to appoint. Morrison v. Olson, 487 U.S. 654, 675–76 (1988) (citing Ex parte Siebold, 100 U.S. 371, 398 (1879)).
More important, even if such cross-branch appointments are typically constitutional, they are often unwise—as arguments by Calabresi and others suggest. Judicial appointments of Executive Branch officials seem fraught with political intrigue, with the potential to embroil judges in political controversy. The recent New Jersey judicial appointment controversy illustrates this point. As Ms. Habba's interim appointment from a Republican Attorney General was expiring, mostly Democratic nominated judges considered whether to extend her appointment. When the judges quickly decided to pick someone else a few days before the expiration of Habba's term, the Deputy Attorney General took to X to criticize the move as political:
The district court judges in NJ are trying to force out @USAttyHabba
before her term expires at 11:59 p.m. Friday. Their rush reveals what this was always about: a left-wing agenda, not the rule of law. When judges act like activists, they undermine confidence in our justice system. Alina is President Trump's choice to lead—and no partisan bench can override that.
To be sure, the judges may have good reasons—even nonpartisan good reasons—for declining to extend Habba's appointment. I don't take a position on her merits. But assessing the judges' reasons would quickly connect to political controversies that judges are poorly suited to handle. And the formal mechanism that the judges have for making an interim appointment—in this case a terse, two-sentence court order—is not well-suited to quell any controversy, as the reasons underlying the selection are unarticulated.
Even if the judges articulated their reasons for appointments of U.S. Attorneys more extensively, such appointments have the potential to cast doubt on the impartiality of the judiciary. When the judiciary selects an interim U.S. Attorney, are the judges trying to find the "best" prosecutor—that is, the prosecutor most likely to obtain a conviction? Should the judges consult with the Justice Department to see who would be the "best fit" to run the office and implement the President's policies?
The point is that it is an incongruous to have judges select an interim U.S. Attorney, when thereafter those same judges will hear cases on a regular basis brought by their appointee. This perception may not be enough to violate formal separation of powers constraints, as the First Circuit concluded in United States v. Hilario, 218 F.3d 19 (1st Cir. 2000). Indeed, judges regularly select defense attorneys in federal criminal cases without constitutional impediment. Id. at 29. And judges may be forced to select a prosecutor "when the Executive Branch defaults." Id. (citing Young v. United States ex rel. Vuitton et Fils,481 U.S. 787, 800–01 (1987) (approving court appointment of a prosecutor for a contempt proceeding)). But when there are no case-specific reasons in play and all that is left is a simple choice between the Executive Branch selecting an Executive Branch officer and the Judicial Branch doing so, it makes sense to prefer the intra-branch selection.
One last point remains to be considered: even when judges appoint an interim U.S. Attorney, can the President (acting through his Attorney General) remove that person from office, creating a vacancy that he can then fill. Here again, the answer appears to be straightforward: yes, the President has removal power. Nothing in § 546(d) blocks the normal removal power of the President over his subordinates. Indeed, in an adjacent statute to § 564—§ 541— Congress provides that "[e]ach United States Attorney is subject to removal by the President." 28 U.S.C. § 541(c). If a judicially appointed U.S. Attorney is somehow immunized from this general statutory removal power, such immunity would need to appear in a statute. Indeed, many of the Supreme Court cases that Calabresi cites (and that I discussed yesterday) underscore how Presidential removal power is important to the proper functioning of the Executive Branch. See, e.g., Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020). And on this removal issue, the First Circuit has specifically held that "the President may override the judges' decision and remove an interim United States Attorney." United States v. Hilario, 218 F.3d 19, 27 (1st Cir. 2000) (citing 28 U.S.C. § 541(c)).
To be sure, there may be situations where recognizing Executive Branch removal power would defeat the very purpose of a judicial appointment. For example, as Young v. United States ex rel. Vuitton et Fils suggests, once the Executive Branch has declined to support a judicially initiated contempt prosecution, the judiciary must have the power to move the prosecution forward without Executive Branch interference. But interfering with a specific prosecution for case-specific reasons is different than removing and replacing an interim U.S. Attorney for appropriate institutional reasons to implement the President's policies. Ultimately, as an institutional matter, the selection of a U.S. Attorney operating within the Executive Branch rests in the hands of the Executive Branch.
Contrary to the foregoing arguments, James Heilpern has suggested that it is impermissible for the President to simply be able to remove and reappoint a U.S. Attorney not to his liking. Heilpern argues that, "[b]y doing so ad nauseum, the President could effectively sidestep the appointment mechanism Congress thought proper"—i.e., the selection by district court judges at the end of the 120-day interim term. Heilpern, supra, at 226. But Heilpern's argument argument essentially ignores Congress's specific statutory authorization for the President to remove U.S. Attorneys. And Heilpern's excellent article, written in 2020, did not have the benefit of recent Supreme Court decisions reinforcing the President's removal power, including most recently Trump v. Wilcox. Under current decisions, the President's removal power over interim U.S. Attorneys seems very likely to be upheld.
For all these reasons, the Attorney General has ultimate control over the selection of U.S. Attorneys. But having dispatched the statutory concerns in the FVRA and § 546, one last important and overarching constitutional question remains to considered: What about the Senate's advice and consent function. Through the maneuvers just discussed, are the President and his Attorney General able to simply and perpetually bypass the Senate confirmation process for U.S. Attorneys?
To answer this question, I think it is important to circle back to point that I made yesterday (in apparent agreement with Calabresi). Both of us went down the path of analyzing the statutory appointments processes on the premise that someone temporarily in an "interim" U.S. Attorney's position was an "inferior" officer of the United States, whose appointment could be specified by Congress under the Appointments Clause, Article II, Section 2. But the issue is a complex one. James Heilpern has helpfully reviewed the issue at some length, concluding that it remains an "open constitutional question." Heilpern, supra, at 210-11. At some point, a series of successive temporary appointments of a U.S. Attorney might well functionally convert an "interim" U.S. Attorney into the permanent U.S. Attorney—in turn raising the question of whether that person needs to be Senate confirmed before taking action.
In my view, one way out of this potential dilemma is to treat an "interim" U.S. Attorney as an inferior officer only in a situation where the Senate confirmation process has been put in play through a Presidential nomination for a permanent appointment. For example, while President Trump's nomination of Alina Habba was pending before the Senate, it was perfectly reasonable to treat her (non-Senate confirmed) interim appointment as an inferior officer, since the appointment was merely temporary pending a Senate decision. If the Senate confirmed Habba, then the advice and consent function had been carried out. And if the Senate rejected Habba, then Habba's temporary interim appointed immediately ended, by operation of law. See 28 U.S.C. § 546(b). In this way, the Senate's constitutional role is honored.
For this reason, Attorney General appointments of interim U.S. Attorneys—along with simultaneous submission of the person to the Senate—should be the preferred approach rather than maneuvering through the FVRA. As noted at the beginning of this post, Justice Thomas (and others) have raised serious constitutional questions about whether the FVRA constitutes an impermissible abrogation by the Senate of its advice and consent function. Moreover, the FVRA itself specifies that the First Assistant may perform the duties of (in this case) the U.S. Attorney only "temporarily." 5 U.S.C. § 3345. This temporary time period is specified in the FVRA next provision as 210 days or "once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate." 5 U.S.C. § 3346. In this way, the FVRA also attempts to protects the Senate's advice and consent function by making an "acting" appointment contingent, at least to some degree, on the Senate having the opportunity to vote to confirm (or reject) a permanent replacement. But the FVRA maneuver is subject to constitutional attack where the First Assistant is not subject to Senate review as she discharges the duties of the U.S. Attorney for 210 days (or, perhaps, even longer, if successive appointments of new First Assistants are made).
To circle back to the current situation in New Jersey, the Attorney General would be acting within her rights to simply reappoint Habba as the interim U.S. Attorney for New Jersey under § 546, accompanied by the President renominating Habba to serve as the permanent U.S. Attorney. The Senate would then have the opportunity to vote up or down on Habba, protecting the advice and consent function. Leaving Habba as the acting U.S. Attorney under the FVRA might invite a constitutional challenge to the entire Act, as Justice Thomas has suggested.
One last note: There may be situations where the Attorney General wishes to confer with local district judges on making selections, or even to allow district judges to make such selection after expiration of the 120-day interim period under § 546. And in all events, the Attorney General may find it politically wise to consult with Senators in that state about whom to select. But nothing in existing law forbids the Attorney General from making a different choice and proceeding on her own initiative to make interim appointments accompanied by proffering a nominee for Senate confirmation hearings.
I realize that the analysis I've provided here is not free from dispute. I agree with James Heilpern that the current situation is "a mess"—and that further guidance from Congress and the courts will be helpful. But in reaching my conclusions, I believe that I ultimately arrive in the right place: The bottom line is that Attorney General can put her own team in place, so long as she gives the Senate an opportunity to evaluate important members of that team. That bottom-line position clearly seems like the right one.
Update: I've cleaned up a few typos from the original post.
