Of particular note is interim US Attorney appointments.
U.S. Attorneys and Game Theory
http://demopedia.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=8807073&mesg_id=8809373The President 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.
U.S. Attorneys are “officers” of the United States (Buckley v. Valeo, 424 U.S. 1 at 126 (1976)). U.S. Attorneys are subordinate to the Attorney General and are thus categorized as “inferior” officers (United States v. Gantt, 194 F.3d 987 at 999 (9th Cir. 1999)). The Attorney General sets the salaries for U.S. Attorneys, reassigns them to different cases at his discretion, and reimburses them for office expenses (id at 1000). The Attorney General’s authority over U.S. Attorneys is nearly complete, the one statutory limitation being the appointment (should Senate approval be granted) and removal power of U.S. Attorneys, a power that Congress chose to vest in the President (id at 1000).
U.S. Attorneys are “inferior” officers under the Appointments Clause and as such Congress may, at their discretion, choose to vest the power to appoint them in the President, in the Courts of Law, or in the Heads of Departments. The “excepting clause” was challenged in Morrison v. Olson, 487 U.S. 654 (1988). The Court affirmed that interbranch appointments were not unconstitutional (id at 673). The Court stated that while it was common and suitable to vest the power to appoint inferior officers in the departments in which they would serve, the Constitution made no requirement to do so (Morrison, 487 U.S. 654 at 674, quoting Ex parte Siebold, 100 U.S. 371 (1880)).
U.S.C. 28, § 541(b) states, “Each U.S. Attorney shall be appointed for a term of 4 years. On the expiration of his term, a U.S. Attorney shall continue to perform the duties of his office until his successor is appointed and qualified.” Should a U.S. Attorney’s position become vacant, an interim U.S. Attorney must be appointed. The judiciary had held the power to appoint interim U.S. Attorneys “since the Civil War” (Gantt, 194 F.3d at 997, 998). This changed in 1986 when Congress enacted § 546(d) of U.S.C. 28, authorizing the Attorney General to “’appoint a United States Attorney for the district in which the office is vacant’ for 120 days” (Gantt, 194 F. 3d at 998, quoting U.S.C. 28, § 546(d)). After 120 days, the district court was authorized to appoint an interim U.S. Attorney to serve in the district until President appointed a U.S. Attorney and received Senate confirmation (id).
In United States v. Hilario, 218 F.3d 19 (2000), the constitutionality of district courts to make interim U.S. Attorney appointments was challenged. It was determined that by appointing members of the Executive Branch who serve the Judicial Branch, “judges ensure not only the enforcement of the laws but also an effective adversarial process” (id at 21). Additionally, Judge Cerezo, citing Morrison 487 U.S. 654 at 676, declared that the Court had recognized no encroachment on executive powers nor did it find an “inherent incongruity about a court having the power to appoint prosecutorial officers” (id at 22).
Interbranch appointments of interim U.S. Attorneys established an appointee’s independence. Judges had no authority to supervise or remove interim U.S. Attorneys, nor could they influence an interim U.S. Attorney’s performance (id at 23). The President’s power to remove an interim U.S. Attorney or appoint a new U.S. Attorney remained (id). The Attorney General could also reassign the interim U.S. Attorney to a different case (id at 24). Interbranch appointments could not then be found to violate the doctrine of separation of powers.
Writing in Federalist No. 77, Alexander Hamilton (1788) advised against the vesting of appointments into the departments to which the appointee would serve, predicting such appointments would lead to governmental instability and exposure to executive influence. Independence of interim U.S. Attorneys from their appointers is necessary to maintain integrity and avoid coercion. As the Court had stated in Berger v. United States, 295 U.S. 78 at 88 (1935):
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
U.S. Attorneys are endowed with powers enumerated in 28 U.S.C. § 547, which allow them to:
(1) Prosecute for all offenses against the United States; (2) prosecute or defend, for the government, all civil actions, suits, or proceedings in which the United States is concerned; (3) appear in behalf of the defendants in all civil actions, suits or proceedings pending district against collectors, or other officers of the revenue or customs for any act done by them or for the recovery of any money exacted by or paid to such officers, and by them paid into the Treasury; (4) institute and prosecute proceedings for the collection of fines, penalties, and forfeitures incurred for violation of any revenue law, unless satisfied upon investigation that justice does not require such proceedings; and (5) make such reports as the Attorney General shall direct.
Because of the power commanded by the position of U.S. Attorney, independence and neutrality are crucial to avoid abuse. Partisan influence, coercion, or rewards for favors can turn the office of U.S. Attorney into a dangerous weapon against citizens. The Court addressed the threat posed by compromised U.S. Attorneys in Berger 295 U.S. 78 at 88:
…While he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. …Improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused, when they should carry none.
Given the potential to damage lives, careers, and reputations, it is essential that safeguards be in place to prevent U.S. Attorneys from miscarrying justice.
With the establishment of the rules, this paper will now observe the moves of the competitors in the balance of power game. The first move was to change the rules. In spite of the long-accepted, constitutionally sound, independence-preserving method of appointing interim U.S. Attorneys, the appointment process was radically changed with the reauthorization of the USA PATRIOT Act in 2006. Removed was the interbranch appointment from the district court; the Attorney General could now make interim U.S. Attorney appointments. Also eliminated was the 120 day period that interim U.S. Attorneys could stay in office before a district court could appoint an interim U.S. Attorney to fill the vacancy. Interim U.S. Attorneys could now remain in office indefinitely, or until the President appointed a U.S. Attorney to the district. Interim U.S. Attorney appointments bypassed Senate confirmation, leaving the determination of qualification to the Justice Department.
The insertion of this new clause into the reauthorization of the USA PATRIOT Act went unnoticed. Senators were at a loss to explain how the clause made its way into the bill. It was later determined that the Justice Department had requested Brett Tolman to insert the clause into the bill (Kiel, 2007). At the time the clause was inserted Mr. Tolman was a counsel to the Senate Judiciary Committee, of which is Sen. Arlen Specter (R-PA) is a member. Sen. Specter responded to inquiries about his involvement with the clause by saying, “I do not slip things in” (Kiel, 2007, p. 1). According to Sen. Specter, the principal reason for the change was to resolve “separation of power issues” (Kiel, 2007, p. 2). The Senate voted to repeal the clause in February 2007 (P.L. 110-34, 2007). Mr. Tolman is now a U.S. Attorney for the state of Utah.
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