Question 1:
(35 minutes)
Section 541 of Title 28 of the United States Code provides that the President of the
United States shall appoint, with advice and consent of the Senate, a United States Attorney for
each judicial district in the United States. 28 U.S.C. § 541(a). Each appointment is for four
years and upon expiration of the U.S. Attorney’s term, he/she shall continue to perform the
duties of office until a successor “is appointed and qualifies.” Id. § 541(b).
Section 546 of Title 28 provides that “the
Attorney General may appoint a United States
Attorney for the district in which the office of United States attorney is vacant,” id. § 546(a),
although the Attorney General is prohibited from filling these vacancies (aka “interim
appointments”) with a person for whom the Senate has refused to give advice and consent. Id.
§ 546(b).
Section 546(c) also states that “[a] person appointed as United States attorney
under [an interim appointment] may serve until the qualification of a United States Attorney for
such district appointed by the President under section 541 of this title.” Id. § 546(c). In other
words, such an interim appointee may serve until the Senate confirms a replacement who has
been nominated by the President.
In the midst of recent scandals involving the U.S. Attorney’s office, including some
controversy over the perceived illegitimate use of interim appointments and the current
administration’s abrupt replacement of eight U.S. Attorneys, Congress has considered
legislation designed to “protect U.S. Attorneys from being used as political pawns.” Thus, on
March 20, 2007, the Senate passed the following legislation:
Section 1. Short Title
This Act may be cited as the “Preserving United States Attorney Independence Act of
2007.”
Sec. 2. Vacancies.
Section 546 of title 28, United States Code, is amended by striking subsection (c) and
inserting the following:
(c) A person appointed as United States attorney under this section [i.e., the
section on interim appointments] 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. . . .
Similar legislation has passed the House and is awaiting reconciliation with the Senate Bill
before it can be sent to the President for signature or veto.
Discuss the separation of powers issues that this legislation raises and whether they
are an impediment to the legislation.