US ATTORNEY DEBACLE

I spent this entire semester writing and researching the back ground and legal aspects of the case for firing US Attorneys. There weren't many law review articles written on the subject, so I in turn, created one. The basis for the firings have much historic background, because the USA's serve at the pleasure of the President. So I had to do a professional job and argue that USA's were superior officers under Article II section 2 cl. 2 of the Constitution. I had to keep this argument within the scope of the constitution and use case law references to come to the conclusion that no laws were broken, no violation of the Constitution was had by the firing of these USA's. I wanted to badly argue the political motives for the firings, because that was what originally interested me on this topic.

So as I finished my paper (got an A!) I now want to discuss the new realizations that Gonzales went to Ashcroft, after Ashcroft turned over decision making power to his deputy James Comey, to have him sign on to the illegal wiretapping program. Mr. Comey had already turned down the request and under strict orders NOT to go see Mr. Ashcroft, went there under a veil of secrecy and requested from a man in great pain and under the influence of drugs to have him put his signature on this.
I know this is off topic for the USA issue, but it just proves that the AG is nothing but a political flunky who puts politics before the Constitution.

What a disgrace you are to the legal profession Mr. Gonzales. I am studying to take the bar exam this July and what it is suggested that you have done is against everything that I have been taught since starting law school.

I think that Mr. Gonzales should be impeached.

For your reading pleasure, attached is my paper on USA's.

Paula
disclaimer:
this is my work and if you want to use this information or paper, you must have permission from me, the author in order to do so.

Constitutional Means to Preserve Senate Involvement in
United States Attorney Appointments


I. Introduction

The White House is under fir and has been under excoriated by Congress and the media for the recent exodus of eight United States Attorneys. its handling of the latest controversy. Over the past several months, at least eight United States attorneys were asked to resign. While not unusuaAlthough United States attorneys are employees of the executive branch and serve at the pleasure of the President, it has been inferred that these particular lead prosecutors were removed solely because they refused to use their office to further the electoral ambitions of the Republican partyParty. WhileAnd although there iares explicit rules for the replacement ofdelineating the reasons a United States attorney can be replaced, legal scholars seem to agree that these apparently politically motivated terminations have tarnishedsullied a long-standing good faith barrier between politics and justice. , the circumstances surrounding these resignations are being questioned for potential politicalization of the criminal process.Politics are said to be taking a prominent role in opening up investigations into these resignations. If given a cursory glanceAt first, the current United States attorney debaclebrouhaha appears to be a non-issue – after all, no laws were violated. However, , if one turns a more trained eye on the situation, she willcan see that the termination of these attorneys raises larger issuesies of American governmental jurisprudence. The addressing of the issues behind the resignations is only the first step into understanding the processes and powers used for the appointment of United States attorneys.
This paper will address the appointment of of these United States attorneys s when a vacancy occurs. In March 2006, during the reauthorization of the USA PATRIOT ACT, a change was made to the law governing the filling of vacancies using interim appointments.[1] This change was not discovered until January of 2007, after a rash of resignations of prominent United States attorneys.[2] Some of the interim United States attorneys selected to fill in for the “fired” United States attorneys have questionable experience and backgrounds. For one example, the interim United States attorney appointed by Alberto Gonzales to fill the vacancy in the Eastern District of Arkansas is said to be a Karl Rove protégé and unqualified for the job. His resume` seems to be full of questionable experience.[3]
This paper will begin with a brief history of the creation of United States attorney’s office beginning with district attorneys and ending with today’s modern day United States attorneys. Section II, will also address the procedures used to appoint United States attorneys on an interim basis. Section III will question the constitutionality of the processes based on Article II, Section 2, clause 2 Appointments Clause. Special care shall be given in answering the question, is the United States attorney a principal officer under this Article. Additional concerns in challenging interim appointments will be discussed in section IV. The conclusion set forth in section V will be the author’s analysis of the arguments that the lower courts have used.
II History of appointment to United States attorney’s office
"And there shall be appointed in each district a meet person learned in the law to act as attorney for the United States in such district, who shall be sworn or affirmed to the faithful execution of his office, whose duty it shall be to prosecute in such district all delinquents,"[4]
As the law of the United States, the Constitution includes the means available for its enforcement. This enforcement is one of the key duties of the executive branch[5]. It is the President’s duty to defend the constitution of the United States.[6]
To assist with this duty of enforcement, the Constitution explicitly allows for the appointment of cabinet members who will assist the President. Article II, § 2, cl. 2 states:
“[S]He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: 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.”

It is without dispute that Presidential cabinet members are principal officers of the United States and of the type, in which Article II meant to cover. Were United States attorneys also the type of officer the Framers had in mind when constructing Article II, § 2, cl. 2 of the Constitution? Where is the Framers definition of an inferior officer?
United States attorneys also assist with the executive branch’s enforcement duty by prosecuting people who break this law as well as appearing on behalf of the United States.[7] Their appointments allow the executive branch to carry out its Constitutional mandate.
United States attorneys are appointed by the President and with advice and consent of the Senate for a four-year term. On the occasion there comes a vacancy in the United States attorney’s position, there are four ways to fill it.
First, the President may under 28 U.S.C. §541, permanently appoint a replacement.
28 U.S.C § 541. United States attorneys: (a) The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district. (b) Each United States attorney shall be appointed for a term of four years. On the expiration of his term, a United States attorney shall continue to perform the duties of his office until his successor is appointed and qualifies. (c) Each United States attorney is subject to removal by the President.

The law above shows the proper procedure for nominating and appointing United States attorneys. 28 U.S.C. § 541 is derived from the Judiciary Act of 1789, which created the position of district attorney.[8] Congress, in the Act of August 2, 1861[9], charged the Attorney General with the "general superintendence and direction duties.” While originally, the precise nature of this direction was not defined, the Department of Justice Act of June 22, 1870[10] and the Act of June 30, 1906[11] established the power of the Attorney General to supervise criminal and civil proceedings in any district.”[12] [13] Initially, the Attorney General did not supervise United States attorneys,[14] but this oversight becomes of great importance later in this paper when looking to define principal officer.
Second, in the event there becomes a vacancy in a United States attorney’s position, the following procedure may be used in filling this position:
§ 546. Vacancies (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 qualification of a United States Attorney for such district appointed by the President under section 541 of this title.[(d) Repealed. Pub. L. 109-177, Title V, § 502, Mar. 9, 2006, 120 Stat. 246]
At the center of the current controversy and this paper, is the word above, which is in bold italicized letters. These subsections, (c) and (d) of § 546 has been on the books for over 100 years.[15] In March of 2006, these subsections were repealed. The subsection previously said:
“(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.”

What makes the removal of this section disturbing is the lack of awareness on behalf of Congress. Since its removal has now been realized, bills have been passed in both the House and Senate to reinstate the previous law.
Third, if a vacancy becomes effective during a recess of Congress, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”[16] This constitutional right under Article II, § 2, cl. 3, has been used to usurp the Senatorial confirmation process. The week of April 8, 2007, President Bush used this provision to fill several vacancies in non-United States attorney positions.
The potential for violation of the Recess Appointment clause under Article II, § 2 cl. 3 was addressed by United States v. Baker, who challenged an appointment of a United States attorney for an interim period.[17] The court declared that the power to appoint under the Recess clause was not affected by a United States attorney in this position because even though there was no actual “vacancy”, this interim United States attorney may be replaced at any time by the President through the use of this clause.[18]
Last, the final means of appointing an interim United States attorney may be via the Vacancies Reform Act (VRA).[19]Amended in 1998, this statute was to provide additional means of filling vacancies in United States official positions. It allows for the temporary use of an acting official. Acting officials may perform the duties and functions of a vacant Senate-confirmed office under this general authority. According to the Director at the Executive Office of United States attorneys, a directive issued in 2003 that addressed a potential conflict between 28 U.S.C § 546 and the VRA, concluded that both of these statutes are available to fill a vacancy in the position of United States attorney.[20] In the case of a vacancy at United States attorney, the first Assistant United States attorney automatically becomes acting United States attorney.


III Constitutional Claims
“Fair import of the appointments clause of the Constitution is that any appointee exercising significant authority pursuant to the laws of the United States is an "Officer of the United States" and must therefore be appointed in the manner prescribed by the Constitution.” [21]
Justice Robert Jackson once said while Attorney General of the United States; “what every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest.” He continues, “…the most dangerous power of the prosecutor is that he will pick people he thinks he should get rather than cases that need to be prosecuted.”[22]
What an awesome power to be entrusted to an individual. Albeit that the Attorney General has certain administrative claims to a United States attorney’s work, such as location of offices, size of staff, he does not choose every case to be heard in each district. The United States attorney has this power. This is because he has his finger on the pulse of his district. He lives and works there[23]. He knows which issues deserve the most attention. This discretion is given to United States attorneys through the Department of Justice’s United States Attorney’s Manual.[24] The directive grants United States attorney’s the authority, discretionary power, and responsibilities relating to criminal matters almost without limitation.[25] As Attorney General Jackson said, this amount of power is dangerous. Additionally, this should not be taken lightly by the courts in deciding which category of “officer” a United States attorney falls.
Several cases over the years challenged the Article II, power of appointment. At issue in some of these claims is the implied power of removal by the President. At times, an individual seek to be declared an “officer” under Article II §2 cl. 2 in order to bring a claim stating they are only subject to removal under this article. Other cases seek to have individuals declared “officers” so that an appointment made in circumvention of this Article, would potentially nullify or void any pending claims made by this person. Both of these contexts will be of help in examining whether United States attorneys fall in the principal or inferior officer category.
There are two distinct sections in Article II, § 2, cl. 2. One addresses “Officers of the United States” and the other addresses “inferior Officers”. The Framers did not distinguish or provide a definition of what is an “inferior officer.” They did provide for the processes to appoint such a person. Over the years, the courts have been left to define this clause. There have been several important Supreme Court decisions on this issue, particularly Buckley v. Valeo,[26] Morrison v. Olson,[27] and Edmond v. United States.[28]
Buckley v. Valeo involves an Appointments Clause challenge regarding the appointment of members to the Federal Election Commission (FEC). The powers conferred by the FEC to its members are of the type that Congress would require to be exercised by officers of the United States. “Any appointee exercising significant authority pursuant to the laws of the United States is an “Officer of the United States,” and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article.”[29] The Court held that, “vesting in the Commission primary responsibility for conducting civil litigation in the courts of the United States for vindicating public rights, violate Art. II, § 2, cl. 2, of the Constitution. Such functions may be discharged only by persons who are “Officers of the United States” within the language of that section.”[30]
Buckley provides some guidance in determining if an appointment falls under the Article II, § 2, cl. 2 appointment clause. In reaching its decision, the Court fails to provide a definitive baseline regarding officers under Article II. The Court does not distinguish between “Officer” and “inferior officer” when it states clearly that the definition of an “Officer” is “any appointee who exercises significant authority pursuant to the laws of the United States.”[31] Even though Buckley does not make a distinction between inferior and principal officers, it does show who would not be considered an officer under Article II, § 2, cl. 2.[32]
The Court in Morrison takes Buckley a few steps further. It attempts to define what constitutes an officer based on what functions a party does or does not perform. Morrison states, “The line between inferior and principal officers is far from clear and the Framers provided little guidance into where it should be drawn.”[33] This case questions the appointment of an Independent Counsel under the Ethics in Government Act. The Ethics in Government Act gives the power of appointment of an Independent Counsel to the Attorney General. The Act also empowers the Independent Counsel to investigate and or prosecute certain high-ranking government officials for violations of federal criminal laws.[34]
In coming to their decision, the Court in Morrison lists several factors used to determine if an Independent Counsel appointed under this Act fell into the category of superior officer and would be subject to the advice and consent of the Senate under Article II, § 2, cl. 2 of the Constitution. The first factor discussed by the Court would be the power of removal. The fact that the statute grants removal power to the Attorney General “indicates [the Independent Counsel] is inferior in rank and authority.”[35] The second factor is that the appointee’s duties are limited. The appointee is not able to formulate policy or given any administrative duties outside those necessary to operate as an Independent Counsel.[36]
The third factor is that the office is limited in its jurisdiction. The Independent Counsel can only use his authority to investigate “certain officials suspected of certain serious federal crimes… within the scope of the jurisdiction granted by the Attorney General.”[37] And lastly, Morrison addresses the fact that the office is limited in its tenure.”[38] It is a temporary office, created to perform certain tasks and “when the task has been completed, the office is terminated.”[39]
This is the test used by the Courts for the next nine years for questioning the classification on an inferior or principal officer.[40] The Court actually comments on the fact that so few cases have been adjudicated on this issue.[41]
The most recent decision by the Supreme Court was in 1997, Edmond v. United States.[42] In Edmond, the Court reluctantly takes up the issue of inferior and principal officers but comes to a different conclusion than in Morrison. At issue here is the appointment of civilian judges by the Secretary of Transportation to the Coast Guard Court of Criminal Appeals and the potential violation of Article II, § 2 cl. 2 of the United States Constitution.[43]
In coming to its conclusion, the Court reiterates the test set forth in Buckley that “the exercise of significant authority pursuant to the laws of the United States marks not the line between principal and inferior officers but the line between officers and non-officers.”[44] The use of the Buckley decision helps to define what an officer is, so that there can be no argument in deciding if an appointment is subject to Article II, § 2, cl. 2 analysis. The Court continues, “An exclusive criterion for distinguishing principal and inferior officers under Article II has not been set forth.”[45] Edmond looks at Morrison differently. Edmond is a case for a permanent appointment, unlike Morrison. The Court quickly dispels the decision in Morrison on the fact that the appointment of the Independent Counsel was limited in tenure and jurisdiction by saying, “these conclusions do not hold with regard to the office [ ] at issue here.”[46] In concluding its analysis, the Court seizes on this statement in Morrison, “ we need not attempt here to decide exactly where the line falls between the two types of officer, “but the Independent Counsel is clearly on the inferior side of the line.”[47]
By ignoring many of the factors decided in Morrison, Edmond created a new method of determining whether an appointment falls under the principal or inferior officer clause in Article II, § 2, cl. 2. The Court holds that inferior officers are officers whose work is directed and supervised at some level by others who were appointed by the President with advice and consent of the Senate.[48]
These three cases serve as the answer for determining principal and inferior officers. Still at issue is where the United States attorneys fit in.
A. Where do United States attorneys fit in?
Even though the Supreme Court has failed to address directly the question if United States attorneys are inferior or principal officers, the Court does mention of in dicta that they are inferior officers in Myers v. United States.[49] Stating that in “Parson's 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.”[50] The Court provides no reasoning for its decision. It just says in a matter of fact way that “district attorneys” are inferior officers. It was stated as if common knowledge. At issue in Parson’s was the removal of an “officer” and if he needed to be removed by the impeachment process.[51]
Therefore, it seems that the analysis created by the Court to determine if one is a principal or inferior officer would be as follows: under Buckley, you must first ask, does the person hold significant authority on behalf of the United States? If that answer is yes, Edmond asks, does this officer have to report to a superior who was appointed by the President with advice and consent of the Senate? The answer of “yes” to this final question is what the Supreme Court now relies on to come to their conclusion. The Court has completely removed from the inquiry the Morrison suggestions that certain indicia are to be used in determining the difference between principal and inferior. These questions are: Is the power of removal placed in a higher office in the executive branch? Is the position limited to certain duties? Is the officer working under limited jurisdiction? Is the position for limited tenure? These questions today are of little relevance and are impliedly overruled by Edmond.[52] Challenges will continue until the Court expressly makes a decision in the case of United States attorneys.
In United States v. Gantt,[53] defendant argues that there was an unconstitutional appointment of the local United States attorney. If that appointment was determined to be infirm, then “the alleged infirmity would, however, nullify the § 3731 certification because, unlike many other rules, § 3731 specifically requires certification by "the United States Attorney.”[54] The court rules that United States attorneys are inferior officers based on the decision in Edmond because of Attorney General supervision.[55] If the court ruled that a United States attorney was a principal officer, it would have created a greater dilemma and potentially allowed the lower courts decision to be vacated.
The decision by the Court in Gantt seemed to give astute defense attorneys an additional avenue to appeal convictions by addressing the constitutionality of a United States attorney appointment. This use of the Gantt decision began later in 1999 in the District of Puerto Rico. The first of several attempts to have a United States attorney declared a principal officer began when a United States attorney appointed on an interim basis was in office longer than the statutory period allowed for permanent appointees.
The story begins when Janet Reno, then the Attorney General for the United States asked for the resignations of all ninety-three United States attorneys.[56] After the expiration of the 120 day period under 28 U.S.C. §546 (d) for vacancies filled by the Attorney General, the district court appointed Guillermo Gil in 1993. His “interim” appointment continued for almost eight years.
The first of such challenges to Mr. Gil’s appointment came in 1999 in United States v. Colon-Munoz.[57] This challenge was brought before the 1st Circuit. The court addresses the issue of the potential unconstitutional appointment of Mr. Gil as both a violation of the appointments clause and separation of powers doctrine and then dismisses for a procedural defect. This decision is important because it raises the issue of invalid appointments based on a separation of powers violation.[58]
Next to raise Mr. Gil’s “interim appointment” was United States v. Vazquez.[59] The defendant argues because of the length of Mr. Gil’s appointment, the appointment became a de facto permanent and violated both Article II and the separation of powers doctrine. At issue here is how the court addressed the Article II claim. The court mentions that there was “scant guidance [] offered by the framers”[60] and provides a generous listing of Supreme and lower court cases where the court found that officers were considered “inferior.”[61]
However, this court mistakenly addresses the Morrison decision as being the most recent to address the distinction between principal and inferior officers.[62] The district court lists the factors used in Morrison (shown earlier). It then addresses the Edmond decision in a sort of after thought by stating “the Court noted another significant but not dispositive factors whether the official exercises significant authority on behalf of the US.” [63] The court then bases its entire decision on Edmond barely addressing the Morrison factors.”[64]
In a grand proclamation this court states, “first and foremost, it is indisputable that the Attorney General exercises significant control over United States attorneys,”[65] beginning with the Act of August 12, 1861, and continuing until today. Vazquez continues by discussing the control by the Attorney General over United States attorneys. The factors used by this court to consider if United States attorney’s are an inferior officers include: the Attorney General’s ability to appoint special prosecutors to investigate United States attorneys,[66] the ability for the Attorney General to hire and fire assistant United States attorneys,[67] determination of the location of offices,[68] what their salaries should be,[69] authorization of office expenses, [70] and the approval for the hiring of clerical and other staff.[71] There is also case law suggesting that the Attorney General has power to “discipline district attorneys”[72] including suspension (with approval of the President).[73]
Vazquez next looks to “the next logical inquiry is what, if any, powers over interim United States Attorneys does the Attorney General not possess. The only immediately apparent power, which fits this category, is the removal of interim United States Attorneys.”[74] And they continue, “while the Attorney General may suspend an interim United States Attorney, she does not possess the statutory authority to remove one appointed in accordance with 28 U.S.C. § 546(d). The power to remove is undoubtedly an important safeguard upon an officer's actions.”[75]
Again, the court never addresses the issue regarding an Article II § 2 cl. 2 appointed United States attorney. In coming to their conclusion, the court analyzes an interim appointed United States attorney and then declares that all United States attorneys are inferior officers.[76] They never address if a United States attorney is in fact a principal officer. They just extend their analysis to all, even if appointed under 28 U.S.C. § 541.
This now brings us back to the lst circuit and their decision in United States v. Hilario.[77] How does the Hilario court resolve the decisions of Morrison and Edmond? They did not have to. United States v. Gantt[78] addressed this issue for them. Hilario opines that the Gantt court “was able to reconcile the opinions of Morrison and Edmond when it decided that the judicial appointment of an interim United States attorney passed muster under Article II.”[79] Even as Hilario spoke of the power of removal, it reiterates this is not enough alone to reconsider if an officer is principal.[80]
The role that Morrison plays in determining the status of an officer has been minimized in light of Edmond. A United States attorney is someone who is supervised by one who was appointed by the President with advice and consent of the Senate and therefore is an inferior officer. Under a potential Supreme Court challenge, these decisions by the lower courts that state that Edmond is the proper way to determine this status would have great support. However, the Supreme Court has not yet ruled on the merits.
IV Additional Challenges
A. Separation of Powers
The separation of powers doctrine provides another argument that a defendant may use to contend that an appointment of interim United States attorney’s is unconstitutional under 28 U.S.C. §546(d). For 143 years, the judicial branch has had the authority to appoint interim United States attorneys. The first law authorizing this appointment power was the Act of March 3, 1863[81] giving the power to appoint an interim replacement to the judiciary. It was practical to have the district judge appoint a replacement until the President could nominate a permanent replacement. This statute underwent few changes over the years[82] until the power was taken from the judiciary on March 9, 2006. Under the USA PATRIOT ACT, the law was changed, removing subsection (d) from §546. The Senate and the House have voted on bills to reinstate this subsection, which is likely be signed by the President in wake of the current scandal. Because of the potential for reinstatement, we will examine this issue.
Each of the aforementioned cases addresses the ability of the courts to appoint a United States attorney. These are not the only cases that have discussed this issue. In 1963, United States v. Solomon[83] challenged the judicial appointment of an interim United States attorney. The court found that the judicial appointment of an interim United States attorney is constitutional.[84] “The statute clearly contemplates that the executive branch is free to choose another United States Attorney at any time, the judicial appointment notwithstanding.”[85]
A line of cases based out of the District of Puerto Rico also attempts this method for attack. In Hilario, the court repudiates “any separation of power challenge simply on the fact that two branches of government are interacting.” [86] The district court's appointment power over interim United States Attorneys “is not unconstitutional unless Congress has vested in the [judges] powers that are more appropriately performed by the other Branches or that undermine the integrity of the Judiciary.”[87] In the Court’s scrutinizing of the separation of powers doctrine Hilario uses the two-part analysis decided in Mistretta v. United States.[88] “First, we must ask whether Congress, in vesting the power to appoint interim United States Attorneys in the district court, conferred upon the judges a power that usurped the prerogatives of another branch of government and, thus, “effected an unconstitutional accumulation of power within the Judicial Branch.”[89] Second, “we must ask whether the exercise of the power to appoint somehow impedes the proper functioning of the Judicial Branch.”[90]
Even as the defendant in Hilario argued, “It is inappropriate for judges to appoint interim United States attorneys because the [United States attorneys] served within the Executive Branch,”[91] Hilario strikes down this argument by using the analysis from Mistretta. “While United States Attorneys are admittedly part of the Executive Branch, they also are officers of the court who serve the Judicial Branch.”[92] In also answering Hilario’s argument, the court submits: §546(d) (repealed) lacks some safeguards that courts have relied on in the past. And “these differences weigh in Hilario's favor, but there is no silver bullet here: the decision that we must make -- whether the judiciary's integrity is adversely affected because the district court has chosen to engage (as a court) in the task of selecting an interim United States Attorney, yet the judges hear cases brought by their appointee on a regular basis -- depends on a wide array of facts and circumstances and how they fit together.”[93] “The Court noted in Morrison that “the longstanding judicial practice of appointing defense attorneys for individuals who are unable to afford representation . . . notwithstanding the possibility that the appointed attorney may appear in court before the judge who appointed him.”[94]
Explicit to Article II § 2 cl. 2 is the power granted to the “courts of law” in appointing “inferior officers.” By placing these words in the Constitution, the Framers may have foreseen the act of appointment was to become burdensome or even a minor duty.[95]
“[T]he Appointments Clause could, of course, be read as merely dealing with etiquette or protocol in describing ‘Officers of the United States' but the drafters had a less frivolous purpose in mind.” [96] The Clause is a bulwark against one branch aggrandizing its power at the expense of another branch, but it is more it “preserves another aspect of the Constitution's structural integrity by preventing the diffusion of the appointment power.”[97]
This defendants argument in Hilario actually seemed to give the court something to consider because of the potential for a conflict of interest. There have been so few challenges to the Appointment clause and the separation of powers doctrine, which makes it difficult to analyze such an argument.[98] The concept of checks and balances implied in the United States Constitution can be one of the important doctrines in developing such a challenge. Implicit in this doctrine is the power for each branch to have the ability to “check and balance”[99] the other.
The court analogizes a defense attorneys’ appointment by a court of law to the present case of appointment of a United States attorney, but this argument fails because the appointment of an attorney on a case-by-case basis is not consistent with the appointment of a prosecutor who argues on behalf of the government. This is where the conflict lies and what the court fails to address.
B. Temporal Limits
Another approach used by defendants to dispute the constitutionality of interim appointments is the omission of any temporal limits on a United States attorney appointment under 28 U.S.C § 546. This statute has no specific time limitations. Under 28 U.S.C. § 541, a United States attorney is appointed by the President with the advice and consent of the Senate for a four-year term with the potential for an indefinite appointment if no successor is named.
United States v. Baker states that Hilario held an interim U.S. Attorney appointed under the old § 546 by the district court (after the expiration of the Attorney General's 120 day appointment) could serve “until the vacancy is filled” irrespective of the time frame. In Hilario, the Baker court maintains, “That period of “interim” service exceeded six years.”[100] The court then states it may be argued that “Attorney General's indefinite appointments under new § 546 are different from the indefinite appointments by district courts under old § 546.”[101] This is because “the role of the Congress, and more specifically the Senate, arguably is compromised if the Attorney General's appointments under new § 546 may be indefinite in duration. This is particularly true when one considers that Congress has required regular U.S. Attorneys to be appointed by the President (not the Attorney General) and confirmed by the Senate.”[102]“[T]o read new § 546 as permitting interim U.S. Attorneys appointed by the Attorney General to serve indefinitely, without the necessity of Senate confirmation, would run squarely up against the provisions of § 541. And such an interpretation could, as a practical matter, have the effect of denying to the Senate its confirmation power.”[103]
Baker addresses the issue of temporal limits by stating, “While a “no time limit” interpretation could leave the Senate without its advice and consent power, the solution, if any is desired, appears to be entirely in the hands of the Legislative Branch.”[104] Although that there are no express time limitations, Congress may impose one by statute at any time, barring a Presidential veto.
This lack of temporal limit may be construed as an intentional means to provide an end around the Appointments clause or the separation of powers doctrine. It may also be argued that temporal limitations may encroach upon the powers of the President by requiring him to make an appointment to this position.
C. Statutory Construction
In U.S. v. Peralta-Ramirez, “The court below determined that, by holding office for so long a period, Gil had become the de facto United States Attorney without having to run the gauntlet prescribed in section 541(a).”[105] This is the trial court decision for United States v. Hilario. “This rendered his continuing service unlawful, the court concluded, because Congress could not have intended to allow an interim appointee to serve as United States Attorney for upwards of six years -- an interval that far exceeds the statutory term for a regular United States Attorney -- without being nominated by the President and confirmed by the Senate.”[106] This decision was expressly overruled by the court in Hilario.
28 U.S.C. §546 is silent to the length of an interim appointment by the Attorney General or in its prior form, the judiciary. Hilario reasons, “That the language of an unambiguous statute typically determines its meaning.”[107] By this silence, Congress intentionally left this question open-ended. “The fact that Congress might have acted with greater clarity or foresight does not give courts a carte blanche to redraft statutes in an effort to achieve that which Congress is perceived to have failed to do. “There is a basic difference between filling a gap left by Congress' silence and rewriting rules that Congress has affirmatively and specifically enacted.”[108] The case out of Eastern District of Arkansas directly relating to the issue of the legality of interim appointments presented for this paper is United States v. Baker.[109] Baker challenges the appointment of interim United States attorney, Tim Griffin by requesting a renunciation by the court of the amendment to 28 U.S.C. §546(d). The defendant further would like the court to declare Mr. Griffin’s appointment invalid under the old statutory scheme as well. The court dismissed this claim by stating that Mr. Griffin’s appointment at the time of the claim would be valid under both statutes. His appointment if under 546(d) would still be valid, because the 120-day period for Attorney General appointment had not yet expired. It is also valid under the current law allowing the Attorney General to appoint an interim replacement.
D. As- Applied Challenge
The defendant in Hilario “strives to persuade the court that, due to the inordinate length of Gil's service as interim United States Attorney, section 546(d), even if not facially unconstitutional, is unconstitutional as applied here.”[110] The court strikes this as unreasonable because they had already decided that United States attorneys were inferior officers and only subject to the Presidential appointment power under Article II. This power of appointment can be delegated to whom Congress chooses under the excepting clause of Article II § 2, cl. 2.
The defendant in Baker attempts to make a similar argument stressing that it is the government’s intention to keep the interim United States attorney in that position for an indefinite period of time. The court rejects this argument by analogizing the length of service that the interim United States attorney in Puerto Rico served, (8 years) to the length of time, the Arkansas interim US attorney has served, (3 months).[111]
The defendant in Baker continues their challenge to an "as applied" challenge to operation of 28 U.S.C. § 546(c), claiming that Mr. Griffin is not an interim appointee but is rather a de facto permanent appointee, intended to serve for the entirety of the President's term of office, and possibly even longer. As a result, Defendant submits, Mr. Griffin must be submitted to the Senate for advice and consent. The court says that this "as-applied" challenge is not ripe for review.”[112] His term of appointment has not exceeded the temporal limits of 28 U.S.C § 541.
V Tipping the balance - Conclusion
We continue to see the importance of United States attorneys and their classification as inferior officers. What would tip the balance in favor of a principal officer decision?
In Hilario, the court adds a coda. “We recognize that it is counterintuitive for a temporary official to remain in office for so extended a period. If we were writing on a pristine page and wished to devise a template for the appointment of United States Attorneys, we might design it differently. Nevertheless, harboring such doubts “is not to find equivocation in the statute's silence, so as to render it susceptible to interpretive choice.”[113] “The unvarnished fact is that section 546(d) does not limit the duration of the service of court-appointed interim United States Attorneys. If Congress decides to proscribe the type of long-running interim appointment that has occurred here, it has the means to do so. In the absence of such a restriction, however, we are constrained to hold that Gil's lengthy tenure as the interim United States Attorney does not contradict the statutory scheme.”[114]
Do the opinions offered by the Supreme Court in Buckley, Morrison and Edmond appropriately declare United States attorneys inferior officers? These United States attorneys have the power, as stated so eloquently by Justice Jackson, to make decisions about whom to prosecute. They have responsibilities that go beyond simple tasks. The Supreme Court in Buckley states, “Any appointee exercising significant authority pursuant to the laws of the United States is an “Officer of the United States”[115] No mention is made of “inferior officer”. Using the determination in Buckley, an “Officer exercising significant authority over the laws of the United States” is to be appointed under the Article II § 2 cl. 2 scheme. A United States attorney has authority over the laws of the United States and should be considered as an “Officer.” With a capital O.
Morrison addresses limited duties, limited duration, removal by Attorney General and limited jurisdiction. By utilizing this test, a United States attorney cannot be removed by the Attorney General or anyone else but the President. The duties of a United States attorney are not limited in jurisdiction or tenure. His or her four-year term limitation is equivalent to that of the President and no one would confuse him with being an inferior officer. The United States attorney’s duties are not limited in scope or duration. Public policy is of the essence of United States attorneys duties. Why else would it be expressly stated that this person must live within the district he is representing?
Clearly, a United States attorney passes all of these tests. The only test it fails is the test announced in Edmond, where an appointee reports to a superior officer under Article II, § 2, cl. 2 of the Constitution, he is to be considered an inferior officer. The Court ignores the Morrison and Buckley decisions and creates this “supervisory role” as precedent.
Taking all of the decisions as a whole, the United States attorney should be a principal officer and be appointed by the President with advice and consent of the Senate. This decision would then make all other arguments moot.
[1] 28 U.S.C. § 546 (a).
[2] Dan Bogden, Paul Charlton, Margaret Chiara, E. Bud Cummins, David Iglesias, Carol Lam, John McKay, Kevin Ryan.
[3] David D. Kirkpatrick and Jim Rutenberg, E-Mail Shows Rove's Role in Fate of Prosecutors, N. Y. TIMES, March 29, 2007, at A1.
[4] Judiciary Act of 1789, Ch. 20, § 35 quoted in Parsons v. United States, 167 U.S. 324, 338 (1897).
[5] U.S. CONS. art. II.
[6] U.S. CONS. art. II, § 1, cl. 7.
[7] 28 U.S.C. § 547.
[8] See supra at n.5.
[9] Ch. 37, 12 Stat. 185.
[10] Ch. 150, 16 Stat. 164.
[11] Ch. 39, 35, 34 Stat. 816.
[12] See 22 Op. Att'y Gen. 491 (1899); 23 Op. Att'y Gen. 507 (1901).
[13] http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title3/2musa.htm#3-2.110.
[14]1 Op. Att'y Gen. 608 (1823).
[15] United States v. Gantt, 179 F.3d 782, 786 (9th Cir. 1999), quoting Act of March 3, 1863, chap. 93, § 2 (1863).
[16] U.S. CONS. art. II, § 2, cl. 3
[17] United States v. Baker, No. 4:06CR00041 GTE, 2007 U.S. Dist. LEXIS 18915, (E. D. Ark. Mar. 16, 2007).
[18] Id.
[19] 5 U.S.C §§ 3345-3349d
[20] Id.
[21] Buckley v. Valeo, 424 U.S. 1, 126 (1975).
[22] Morrison v. Olson, 487 U.S. 654, 727 (Scalia, J., dissenting) quoting R. Jackson, Address at the Second Annual Conference of United States Attorneys (Apr. 1, 1940).
[23] 28 U. S. C § 545.
[24] Principals of Federal Prosecution, USAM § 9-27.110.
[25] Id.
[26] 424 U.S. 1 (1975).
[27] 487 U.S. 654 (1988).
[28] 520 U.S. 651 (1997).
[29] Buckley v. Valeo, 424 U.S. 1, 126 (1975).
[30] Id. at 141.
[31] Id. at 126.
[32] Id.
[33] 487 U.S. 654, 671 (1988).
[34] Id.
[35] Id. at 672.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] See e.g., Freytag v. Commission of Internal Revenue, 501 U.S. 868, 883 (1991); Weiss v. United States, 510 U.S. 163, 173 (1994); In re North, 10 F.3d 831, 836 (D. C. Cir. 1993).
[41] Morrison at 672.
[42] 520 U.S. 651 (1997).
[43] Id.
[44] Id. at 662.
[45] Id.
[46] Id.
[47] Id. at 662 quoting Morrison at 672.
[48] Id. at 663.
[49] 272 U.S. 52 (1925).
[50] 272 U.S. 52, 159 (1925), quoting Parsons v. United States, 167 U.S. 324 (1897).
[51] At issue in Parsons v. United States, 167 U.S. 324 (1897), a standing “district attorney” was asked to resign. Parsons argued that he was to hold office for the full four year term and could not be removed by the President directly.
[52] Conversation with John Q. Barrett April 11, 2007.
[53] 194 F.3d 987 (9th Cir. 1999).
[54] Id. at 998.
[55] Id.
[56]Paul Houston, Reno Demands Resignations from all 93 U.S. Attorneys, LOS ANGELES TIMES, March 24, 1993, at A5, 1.
[57] 192 F.3d 210, 216 (lst Cir. 1999).
[58] Id.
[59] United States v. Vazquez, 69 F. Supp. 2d 286, 291 (D. P. R. 1999).
[60] Id. at 289.
[61] Id.
[62] Id.
[63] Id.
[64] Id. at 291.
[65] Id.
[66] 28 U.S.C. § 526(a) (1).
[67] 28 U.S.C. § 542.
[68] 28 U.S.C. § 545(b).
[69] 28 U.S.C. § 548.
[70] 28 U.S.C. § 549.
[71] 28 U.S.C. § 550.
[72] Vazquez at 290 quoting Sutherland v. Int'l Insurance Company of New York, 43 F.2d 969, 971 (2d Cir. 1930).
[73] Vazquez at 290 quoting Carey v. United States, 132 Ct. Cl. 397 (Ct. Cl. 1955).
[74] Id. at 291.
[75] Id.
[76] Id.
[77] 218 F.3d 19 (lst Cir. 2000).
[78] 194 F.3d. 987 (9th Cir. 1999).
[79] 218 F.3d 19, 25 n.5.
[80] Id. at 27.
[81] Discussed in United States v. Vazquez, 69 F. Supp. 2d 286, 291(D. P. R. 1999), United States v. Gantt, 194 F.3d 987, 998 (9th Cir. 1999).
[82] In 1986, the Criminal Law and Procedure Technical Amendments Act of 1986 Pub.L. 99-646, § 69 added the ability for the Attorney General to make an interim appointment of a United States attorney for a 120 day period before the district court appoints an interim replacement. See 132 Cong. Rec. H1129-01.
[83] 216 F.Supp. 835 (S.D.N.Y.1963).
[84] Id. at 843.
[85] Id. at 842.
[86] 218 F.3d 19, 26- 28.
[87] Id. at 27, quoting Mistretta 488 U.S. 361, 385
[88] 488 U.S. 361(1989).
[89] Id. at 28
[90] Id.
[91] Id. at 27.
[92] Id.
[93] Id. at 26
[94] Id. at 26 quoting Morrison, 487 U.S. at 677 n.14.
[95] Analysis by PC
[96] Buckley v. Valeo, supra, at 125.
[97] Ryder v. United States, 515 U.S. 177, 183 (1995), quoting Freytag v. Commissioner, 501 U.S. 868, 878(1991).
[98] Bowsher v. Synar, 478 U.S. 714 (1986); Buckley v. Valeo, 424 U.S. 1 (1975); Freytag v. Commissioner 501 U.S. 163 (1991); Morrison v. Olson 487 U.S. 654 (1988); Ryder v. United States 515 U.S. 177 (1995); Weiss v. United States 510 U.S. 163 (1994).
[99] 1st grade class, Miss Hassett.
[100] Id.
[101] Id. at *13 quoting Hilario 218 F.3d at 23.
[102] Id. at *13.
[103] Id. at *12.
[104] Id. at *44.
[105] 83 F. Supp 2d at 269.
[106] Hilario at 23.
[107] Id.
[108] United States v. Baker, No. 4:06CR00041 GTE, 2007 WL 841665, at *13 (E.D.Ark. March 16, 2007) quoting Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978).
[109] No. 4:06CR00041 GTE, 2007 WL 841665.
[110] See, United States v. Hilario at 29.
[111] No. 4:06CR00041 GTE, 2007 WL 841665, at * 6.
[112] Id. at *11.
[113] See supra, United States v. Baker.
[114] Id.
[115] See supra, Buckley v. Valeo.

a blog to call my own

If it weren't for my friend Sui, I would never have thought of such a thing. A place to post whatever thoughts for all to see!

I won't be screaming into my pillow any more.

Thanks to Professor David Gregory for reminding me that anything I publish may be used against me in my job search.