Inter-branch appointments after the independent counsel: Court appointment of United States attorneys

Minnesota Law Review

Volumn 86, Issue 2, 2001, Pages 363-443

  Wiener, Ross E ^a  

^a United States Department of Justice   (United States)

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EID: 0347649251     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (387)

1. 487 U.S. 654, 696-734 (1988).
2. See 28 U.S.C. § 599 (1994); see also Roberto Suro, As Special Counsel Law Expires, Power Will Shift Back to Reno, WASH. POST, June 30, 1999, at A6.
3. See 28 U.S.C. § 546(d) (1994).
4. See U.S. CONST. art. II, § 3; see also Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982) ("[The President is] entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity. These include the enforcement of federal law - it is the President who is charged constitutionally to 'take Care that the Laws be faithfully executed'. . . .").
5. See generally DANIEL J. MEADOR, THE PRESIDENT, THE ATTORNEY GENERAL, AND THE DEPARTMENT OF JUSTICE 10-43 (1980).
6. There are ninety-four judicial districts - geographic zones within the jurisdiction of a district court - in the United States. See U.S. DEP'T OF JUSTICE, UNITED STATES ATTORNEYS' MANUAL § 1-2.500 (1997) [hereinafter U.S. ATTORNEYS' MANUAL], available at http://www.usdoj.gov/usao/eousa/ foia_reading_room/usam/ (last visited Sept. 23, 2001).
7. Each state has at least one district and no district crosses a state line. JAMES EISENSTEIN, COUNSEL FOR THE UNITED STATES: U.S. ATTORNEYS IN THE POLITICAL AND LEGAL SYSTEMS 11 (1978).
8. There are also districts for Puerto Rico, Guam, and the Northern Mariana Islands. U.S. ATTORNEYS' MANUAL, supra, § 1-2.500.
9. There is one U.S. Attorney in each judicial district, but the U.S. Attorney for the Northern Mariana Islands can also serve simultaneously as the U.S. Attorney for another judicial district. See 28 U.S.C. § 545(a) (1994). Traditionally, the U.S. Attorney for Guam also serves as the U.S. Attorney for the Northern Mariana Islands so that, while there are ninety-four judicial districts, there are only ninety-three U.S. Attorneys. See U.S. ATTORNEYS' MANUAL, supra, § 3-2.100 (explaining that there is one U.S. Attorney per judicial district "with the exception of Guam and the Northern Marianas, where a single United States Attorney serves in both districts").
10. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES 355 (120th ed. 2000).
11. In addition to conducting litigation on behalf of the federal government, the Department of Justice administers many ancillary law enforcement agencies, including the Federal Bureau of Investigation, the Immigration and Naturalization Service, the Drug Enforcement Administration, the Bureau of Prisons, and the Marshals Service. See U.S. ATTORNEYS' MANUAL, supra note 6, §§ 1-2.300 to 1-2.306; MEADOR, supra note 5, at 18-24 (cataloging and describing the law enforcement bureaus and agencies administered by the Department of Justice).
12. In 2000, the federal budget authorized the Department of Justice to employ approximately 126,000 people. Justice Mgmt. Div., U.S. Dep't of Justice, 2000 Budget Summary, available at http://www.usdoj.gov/jmd/2k-summary/2ktoc.html (last visited Nov. 8, 2001). This includes approximately 5000 career prosecutors assigned to the various U.S. Attorneys' offices (Assistant U.S. Attorney or AUSA) and approximately 2500 attorneys assigned to the Washington, D.C. headquarters of the Department known as "Main Justice." Id.;
13. cf. Griffin B. Bell, The Attorney General: The Federal Government's Chief Lawyer and Chief Litigator, or One Among Many?, 46 FORDHAM L. REV. 1049, 1049 (1978)
14. (representing that the Department of Justice employed 3806 attorneys in 1978-2008 in Washington, D.C., and 1798 in the U.S. Attorneys' offices (citing U.S. DEP'T OF JUSTICE, LEGAL ACTIVITIES 2 (1977))).
15. In 1904, the Department of Justice employed approximately 260 officers and employees in Washington, D.C. and nearly 1300 "field officers and employees" in the various U.S. Attorneys' offices. JAMES S. EASBY-SMITH, THE DEPARTMENT OF JUSTICE; ITS HISTORY AND FUNCTIONS 25 (1904).
16. 28 U.S.C. § 503 (1994) ("The Attorney General is the head of the Department of Justice."); id. § 519 (authorizing the Attorney General to supervise the work of the U.S. Attorneys).
17. Nadler v. Mann, 951 F.2d 301, 305 (11th Cir. 1992) ("A United States Attorney, appointed by the President and confirmed by the Senate, is the chief federal law enforcement official for the judicial district he serves and is responsible for the prosecution of all offenses against the United States within his district."); see 28 U.S.C. § 541(a) (1994).
18. See 28 U.S.C. § 547 (1994) (establishing duties of U.S. Attorneys and vesting U.S. Attorneys with authority to "prosecute for all offenses against the United States").
19. For a discussion of the expansion of federal criminal jurisdiction, see Charles D. Bonner, The Federalization of Crime: Too Much of a Good Thing?, 32 U. RICH. L. REV. 905, 920-25 (1998).
20. The dramatic proliferation in federal crimes is largely a product of the Twentieth Century. See HOMER CUMMINGS & CARL MCFARLAND, FEDERAL JUSTICE: CHAPTERS IN THE HISTORY OF JUSTICE AND THE FEDERAL EXECUTIVE 474-75 (1937) (commenting that for most of the nation's history "the federal criminal law was limited in purpose to the protection of federal property and restricted federal functions"). The punishment of common law crimes was reserved to the jurisdiction of the states. Id. at 475.
21. According to the Court of Appeals for the D.C. Circuit, Authority to prosecute an individual is that government power which most threatens personal liberty, for a prosecutor "has the power to employ the full machinery of the state in scrutinizing any given individual. Even if a defendant is ultimately acquitted, forced immersion in criminal investigation and adjudication is a wrenching disruption of everyday life." In re Sealed Case, 838 F.2d 476, 487 (D.C. Cir. 1988) (quoting Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987)), rev'd sub nom. Morrison v. Olson, 487 U.S. 654 (1988); see also Robert W. Gordon, Imprudence and Partisanship: Starr's OIC and the Clinton-Lewinsky Affair, 68 FORDHAM L. REV. 639, 642 (1999) ("[T]he arsenal of investigative and punitive weapons modern prosecutors may deploy against lawbreakers and potential witnesses is devastating in its destructive powers.").
22. See EXECUTIVE OFFICE FOR U.S. ATTORNEYS, U.S. DEP'T OF JUSTICE, UNITED STATES ATTORNEYS ANNUAL STATISTICAL REPORT 1 (2000) ("Each United States Attorney is responsible for establishing law enforcement priorities within his or her district.").
23. 28 U.S.C. §§ 541, 546 (1994) (establishing procedures for the appointment of U.S. Attorneys).
24. Id. § 541(a).
25. Id. § 546(c).
26. See id. § 546(c)(1).
27. Id. § 546(d).
28. See U.S. CONST. art. II, § 2, cl. 2; see also infra Part III (discussing the distinction between principal and inferior officers).
29. U.S. CONST. art. II, § 2, cl. 2.
30. See Morrison v. Olson, 487 U.S. 654, 675-76 (1988).
31. Id.
32. See MEADOR, supra note 5, at 5 (discussing the First Congress's debates over the structure of the executive branch ("It is of large yet overlooked historical significance that the [F]irst Congress did not deal with the office of Attorney General in connection with the creation of the executive departments of the new government.")); see also Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 DUKE L.J. 561, 572-75.
33. That these offices were considered vital to the existence of any national government is illustrated by their creation under the Articles of Confederation. By 1781, Congress had established the executive departments of War, Foreign Affairs, and Finance. See Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 600-01 (1994).
34. See CUMMINGS & MCFARLAND, supra note 11, at 1-2 ("The old Articles of Confederation had conferred upon the Continental Congress authority over peace and war, but even then the states might veto requests for men and money.").
35. See Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 286 (1989).
36. See Bloch, supra note 23, at 576-78; Krent, supra note 25, at 284 ("Congress'[s] control over the appropriations process affords the legislature a potent weapon with which to influence the Executive's criminal law enforcement authority."). Congress has an explicit, constitutional grant of authority over national finances: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . ." U.S. CONST. art. I, § 9, cl. 7.
37. See Bloch, supra note 23, at 576 & n.50 (noting that the Departments of Foreign Affairs and War were labeled as executive departments, whereas the Department of the Treasury was not). Moreover, while the statutes creating the Secretaries of War and Foreign Affairs explicitly called for presidential direction and control, the statute defining the duties of the Secretary of the Treasury "was silent on the subject of presidential direction." Gerhard Casper, An Essay in Separation of Powers: Some Early Versions and Practices, 30 WM. & MARY L. REV. 211, 240 (1989).
38. However, the Secretary of the Treasury was removable by the President, see id. at 240, and was paid according to a schedule set for "Executive Office[s]." See Bloch, supra note 23, at 576 n.50. For competing interpretations of these discrepancies, compare Calabresi & Prakash, supra note 23, at 647-55, with Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 34-38 (1994).
39. See Bloch, supra note 23, at 576 (citing Act of Sept. 2, 1789, ch. 12, § 1, 1 Stat. 65, 65 (creating and defining offices of the Secretary of the Treasury, Comptroller, Auditor, Treasurer, Register, and Assistant to the Secretary)). This desire for more detailed control may signify Congress's desire to guard its control over the purse. The Framers had even considered a proposal to have the Treasurer appointed by a joint resolution of the two houses of Congress. See 2 MAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 233 (1911). There is some evidence that the House of Representatives viewed the Secretary of the Treasury as an extension of its appropriations authority. For example, upon Alexander Hamilton's confirmation as the first Secretary of the Treasury in July 1789, Congress disbanded its Ways and Means Committee and did not establish a standing committee on Ways and Means until 1795. See Casper, supra note 27, at 241 ("In the Congress, the Secretary of the Treasury was seen as an indispensable, direct arm of the House in regard to its responsibilities for revenues and appropriations.").
40. See THE FEDERALIST NO. 21, at 138-39 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
41. U.S. CONST. art. VI, § 1, cl. 2. The Supremacy Clause states, This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Id.
42. See Krent, supra note 25, at 303-07; see also Bloch, supra note 23, at 570 (describing the extensive concurrent state jurisdiction in the early federal scheme and concluding that "very little [jurisdiction] was exclusively federal").
43. See CUMMINGS & MCFARLAND, supra note 11, at 475 (stating that "[t]he policy and practice of a hundred and thirty years or more prior to the [First] World War had left the punishment of common law crimes to the states").
44. See Bell, supra note 7, at 1051 (describing the First Congress's fear of a strong, centralized federal law enforcement apparatus as one possible motive for their creation of a weak Attorney General); Bloch, supra note 23, at 568-71 (stating that the creation of a weak Attorney General was consistent with the First Congress's reluctance to create a strong federal judicial system).
45. The debates and enactments of the First Congress have long been regarded as significant indications of the original meaning of the Constitution. See, e.g., Bowsher v. Synar, 478 U.S. 714, 723-24 (1986) (stating the decisions of the First Congress afford "contemporaneous and weighty evidence" of the meaning of the Constitution (quoting Marsh v. Chambers, 463 U.S. 783, 790 (1983))); cf. Lessig & Sunstein, supra note 27, at 13-14 n.47 (questioning the "usefulness of post-enactment practice for interpreting the meaning of the Constitution" and discussing the Alien and Sedition Acts).
46. See Krent, supra note 25, at 286-87. The characterization of where law enforcement sits in our tripartite government has been the subject of much scholarship and intense debate. Many view law enforcement, and in particular, criminal prosecutions, as "core" executive functions. See, e.g., Morrison v. Olson, 487 U.S. 654, 706 (1988) (Scalia, J., dissenting) ("Governmental investigation and prosecution of crimes is a quintessentially executive function."); Calabresi & Prakash, supra note 23, at 658-61 (arguing that presidential practice and English tradition support the argument that prosecutorial authority is inherently an executive function). Others have argued persuasively that law enforcement occupies a more ambiguous position, where the legislative, judicial, and executive branches can all play a constructive role. See, e.g., Bloch, supra note 23, at 562-63 (arguing that history is indeterminate with regard to exclusivity of executive authority over prosecutions); Lessig & Sunstein, supra note 27, at 14-22 (recounting the historical placement of law enforcement authority in different power structures). This Article does not attempt to discern which of these competing theories has the stronger claim on the Framers' intentions. Instead, it describes the history of law enforcement as one helpful tool in understanding the complex relationship between the U.S. Attorneys and the Attorney General. Although this history is not determinative of the relationship today, it is still significant. The historical roles and responsibilities of the U.S. Attorneys, and the U.S. Attorneys' relationships to other executive-branch officials, are relevant to understanding the stature U.S. Attorneys enjoy today and assist in analyzing the propriety of the U.S. Attorneys' court appointment.
47. Throughout this discussion of the history of federal law enforcement, "U.S. Attorney," the contemporary title, is used interchangeably with "district attorney," the original title of the same office. See Bell, supra note 7, at 1051 (noting that U.S. Attorneys were once known as district attorneys); Bloch, supra note 23, at 567 (same).
48. 1 JULIUS GOEBEL, JR., HISTORY OF THE SUPREME COURT OF THE UNITED STATES 490 (1971);
49. Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 HARV. L. REV. 49, 108-09 (1923); see also Bloch, supra note 23, at 567 & n.24, 571 & n.32 (examining the available legislative history of the appointment provisions in the Judiciary Act of 1789).
50. See An Act to Establish the Judicial Courts of the United States (Judiciary Act of 1789), ch. 20, § 35, 1 Stat. 73, 93 (1789). Although the Judiciary Act of 1789 required the Attorney General to give legal opinions when requested to do so by the President, id., it is in contrast to the legislation defining the duties of the Secretaries of War and Foreign Affairs, which made presidential direction and control explicit. See Bloch, supra note 23, at 572 ("In establishing the two 'great executive departments' of Foreign Affairs and War, Congress was notably concerned with assuring presidential control and limiting congressional interference with presidential powers." (citing 1 ANNALS OF CONG. 368 (J. Gales ed. 1790))).
51. See, e.g., Bloch, supra note 23, at 578-80 (describing the ambiguous relation of the Attorney General to the rest of the executive branch).
52. See CUMMINGS & MCFARLAND, supra note 11, at 25; MEADOR, supra note 5, at 6; see also EASBY-SMITH, supra note 7, at 4-5 (noting that the Attorney General was not formally recognized as the fourth-ranking cabinet member until 1886). The Attorney General has traditionally attended cabinet meetings since 1792. In 1828, there was some question as to whether the Attorney General should tender his resignation, as was expected of other cabinet members, at the end of the Quincy-Adams administration. CUMMINGS & MCFARLAND, supra note 11, at 98. This was only the second transition from one party to another, the first being Jefferson's ascension to the presidency in 1801. Former President James Monroe suggested to Attorney General William Wirt that, while other cabinet members could be expected to resign, Wirt need not tender his resignation, because "[t]he President has less connection with, and less responsibility for the performance of" the duties of the Attorney General. Id. (citing Letter from James Monroe to William Wirt). Nonetheless, Wirt resigned on the eve of Andrew Jackson's inauguration. Id. 41. Bloch, supra note 23, at 581.
53. See id. at 563 ("[The Framers and the early legislators] created a unitary Presidency, but did not mandate complete presidential control over all administrative offices that Congress might establish. Their approach to questions of control was neither rigid nor doctrinaire. On the contrary, it was remarkably subtle and pragmatic.").
54. See Judiciary Act of 1789, ch. 20, § 27; see also Krent, supra note 25, at 286. Although the court appointment and removal of U.S. Marshals might at first blush seem a convenient and probative comparison to the appointment of U.S. Attorneys, the role and responsibilities of U.S. Marshals are not analogous to those of the U.S. Attorneys. The primary functions of U.S. Marshals are "holding people in detention, serving subpoenas and civil summonses, and providing some protective services for government witnesses. The U. S. Marshal no longer performs any investigative function." WHITNEY NORTH SEYMOUR, JR., UNITED STATES ATTORNEY: AN INSIDE VIEW OF "JUSTICE" IN AMERICA UNDER THE NIXON ADMINISTRATION 23 (1975); see also 28 U.S.C. § 566 (1994) (defining powers and duties of U.S. Marshals). "[M]arshals themselves had become almost exclusively court officers when the First Congress met." CUMMINGS & MCFARLAND, supra note 11, at 17; see also Ex Parte Siebold, 100 U.S. 371, 397 (1879) ("The marshal is pre-eminently the officer of the courts . . . ."). Even though U.S. Marshals are much more akin to court officers than are U.S. Attorneys, the Attorney General is given sole authority to appoint marshals in the event of a vacancy. 28 U.S.C. § 562 (1994). The district court is granted no authority with respect to filling vacancies in the office of U.S. Marshal. See id.
55. See MEADOR, supra note 5, at 5 ("The question of legal counsel for the government was considered only in the context of the creation of the judiciary.").
56. See Judiciary Act of 1789, ch. 20, § 35.
57. See CUMMINGS & MCFARLAND, supra note 11, at 15; see also Bloch, supra note 23, at 568 (commenting that it is not surprising that the Attorney General was so weak "in view of the First Congress's general reluctance to create a strong federal judicial system").
58. See Bloch, supra note 23, at 568-69; see also Krent, supra note 25, at 305-07 (discussing early enforcement of federal criminal laws by state officials and concurrent state court jurisdiction over criminal prosecutions under federal laws). During the Whiskey Rebellion, civil cases to collect federal revenues were litigated in the state courts of Pennsylvania, while criminal prosecutions were handled in federal court. See CUMMINGS & MCFARLAND, supra note 11, at 44.
59. Judiciary Act of 1789, ch. 20, § 35 (emphasis added). The entire statutory description of the Attorney General's responsibilities was included in a single paragraph of the Judiciary Act of 1789: And there shall . . . be appointed a meet person, learned in the law, to act as attorney-general for the United States, who shall be sworn or affirmed to a faithful execution of his office; whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments, and shall receive such compensation for his services as shall by law be provided. Id. Attorney General Homer Cummings opined that this limited jurisdiction may have been accidental. CUMMINGS & MCFARLAND, supra note 11, at 16. Cummings suggested that it may have been incidental to the proposal to have the Supreme Court appoint the Attorney General but that, even when this provision was rejected, "the wording of the section was not revised and the Attorney General remained charged only with the duty of appearing before the Supreme Court." Id.
60. See Bell, supra note 7, at 1051 ("Those early representatives vividly remembered the tyranny that could result from strong central enforcement of laws, and they hesitated to create machinery in the executive branch that possibly could serve as an engine of oppression.").
61. See EASBY-SMITH, supra note 7, at 6; MEADOR, supra note 5, at 6.
62. See Bloch, supra note 23, at 567 n.21 (citing Act of September 23, 1789, ch. 18, § 1, 1 Stat. 72, 72 (Act setting compensation for the judiciary)).
63. Id. (citing Act of September 11, 1789, ch. 13, § 1, 1 Stat. 67, 67 (Act setting the salaries of executive officials)).
64. Id.
65. See id. at 567. According to James Easby-Smith, [The meager salary] was due to the arguments that the duties of the Attorney-General would be very light, that he could and would engage in private practice, and that the prestige of the office would be so great that it would be well worth the while of any lawyer to accept the office with only a nominal compensation. EASBY-SMITH, supra note 7, at 5. Many of the early Attorneys General did not live in Washington, "but remained at their homes and transmitted their advice and opinions by mail." Id. at 8. The Attorney General was paid on a fee-basis for representing the government outside the Supreme Court. For example, Attorney General William Wirt was paid $1500 for prosecuting pirates in Baltimore and on another occasion was paid $1000 for prosecuting mail robbers. CUMMINGS & MCFARLAND, supra note 11, at 90. Incumbent Attorneys General argued many early and important Supreme Court cases representing paying clients in their private practices. Id. at 154. Caleb Cushing, Attorney General under President Franklin Pierce, became the first full-time Attorney General when, in 1853, Congress raised his salary to $8000, commensurate with other cabinet secretaries' salaries. Id. at 155.
66. See EASBY-SMITH, supra note 7, at 6 (noting that, in addition to the legal duties of the office, the Attorney General "was obliged to perform all the physical labor of the office, for Congress had failed to provide for him clerical assistance, and he had not even a single clerk"); see also Bloch, supra note 23, at 586-88 (describing the challenges facing the first Attorney General, Edmund Randolph). Edmond Randolph also served as George Washington's personal, private attorney. CUMMINGS & MCFARLAND, supra note 11, at 1.
67. See Bell, supra note 7, at 1051 (suggesting that, while early Congresses were motivated by "frugality," a more important factor in denying the repeated requests "was fear of a strong Attorney General"); Bloch, supra note 23, at 589 n.91 (arguing that an aversion to centralization thwarted attempts to create a well-funded Attorney General's office); see also Krent, supra note 25, at 286-90 (describing repeated attempts to consolidate legal representation of the government under the Attorney General). The repeated entreaties of various Presidents and Attorneys General to expand the staff and supervision granted to the Attorney General are catalogued by James Easby-Smith. EASBY-SMITH, supra note 7.
68. See Judiciary Act of 1789, ch. 20, § 35 (providing for district attorneys in each judicial district "to prosecute . . . all delinquents for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned"); Bloch, supra note 23, at 567; see also MEADOR, supra note 5, at 6 (noting that Congress failed "to give the Attorney General any control or supervision of the district attorneys"). In the beginning, the Attorney General was not even involved in the selection or appointment process of the U.S. Attorneys. EASBY-SMITH, supra note 7, at 38. In fact, the State Department, exercising its early role somewhat akin to Britain's "Home Department," conducted all business and correspondence relating to the selection and appointment of "district attorneys, marshals and other officials properly under the jurisdiction of the Attorney-General." Id. In 1850, this work was transferred to the office of the Attorney General. Id. Nonetheless, officers of the Department of Justice received their commissions from the Secretary of State until 1888, when this responsibility was finally transferred to the Department of Justice. Id. at 39.
69. See Bell, supra note 7, at 1051.
70. Krent, supra note 25, at 286-87.
71. Judiciary Act of 1789, ch. 20, § 35.
72. See Bloch, supra note 23, at 567 n.24; Warren, supra note 37, at 108-09; supra note 37 and accompanying text.
73. Bloch, supra note 23, at 567 n.24 ("[The Judiciary Act of 1789] did not specify how the Attorney General or the district attorneys would be appointed. The President nevertheless immediately assumed that responsibility, went to the Senate for advice and consent, presumably reading [A]rticle II, section 2 to support and perhaps require this approach." (citation omitted)). Today, the relevant appointment provisions are codified at 28 U.S.C. § 501 (Attorney General) and 28 U.S.C. §§ 541, 546 (U.S. Attorneys).
74. See Judiciary Act of 1789, ch. 20, § 35 (defining the duty of a district attorney to "prosecute in such district all delinquents for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned"); see also Bell, supra note 7, at 1051 (remarking that the Judiciary Act of 1789 vested the U.S. Attorneys with "exclusive[]" power with respect to "the enforcement of penal law and the representation of the federal government in civil litigation at the trial level").
75. See CUMMINGS & MCFARLAND, supra note 11, at 474-75.
76. See Act of Mar. 3, 1797, ch. 20, § 1, 1 Stat. 512, 512 (1797) (granting the Comptroller of the Treasury authority to direct legal proceedings against delinquent revenue officers); CUMMINGS & MCFARLAND, supra note 11, at 74; see also John G. Heinberg, Centralization in Federal Prosecutions, 15 MO. L. REV. 246 (1950) (providing the history of Treasury Department supervision of U.S. Attorneys); Lessig & Sunstein, supra note 27, at 17 (discussing the relative independence of the Comptroller General). The Department of the Treasury's supervision of government litigation was to persist for many years. Heinberg, supra, at 246. In 1828, the Treasury Agent (successor to the Solicitor's responsibilities with respect to overseeing district attorneys) supervised more than 3000 pending cases in which the United States had an interest. CUMMINGS & MCFARLAND, supra note 11, at 144. President Jackson, upon his inauguration in 1829, took up the call to strengthen the Attorney General's supervisory authority. "But Congress instead of carrying out the President's recommendations and increasing the powers and duties of the Attorney-General, created, in 1830, the office of Solicitor of the Treasury, giving to that officer control of civil suits in which the Government was interested." EASBY-SMITH, supra note 7, at 11. The Solicitor of the Treasury was granted the power "to instruct the district attorneys in all matters and proceedings in which the United States was interested." MEADOR, supra note 5, at 7 (citing Act of May 29, 1830, ch. 153, 4 Stat. 414 (1830)). The Attorney General was relegated to advising the Solicitor of the Treasury only when the Solicitor requested such assistance. CUMMINGS & MCFARLAND, supra note 11, at 146 (citing Act of May 29, 1830, ch. 153, § 10, 4 Stat. 414, 416 (1830)).
77. See Lessig & Sunstein, supra note 27, at 70 ("[I]n conditions like those of the founding, it made little sense to vest in the President centralized control over district attorneys, given their distance from the center, and it would be fully understandable that they would function relatively independently of the President."); see also Stephen L. Carter, The Independent Counsel Mess, 102 HARV. L. REV. 105, 126 (1988) ("In the first decades of the Republic, federal prosecutors . . . had no direct superior in the federal government, and they acted with considerable independence . . . .").
78. See MEADOR, supra note 5, at 9-10 & n.2.
79. See id. at 9 (citing CUMMINGS & MCFARLAND, supra note 11, at 220-21); Bell, supra note 7, at 1052.
80. See NANCY V. BAKER, CONFLICTING LOYALTIES: LAW AND POLITICS IN THE ATTORNEY GENERAL'S OFFICE, 1789-1990, at 49 (1992).
81. CONG. GLOBE, 41st Cong., 2d Sess. 3038 (1870).
82. See CUMMINGS & MCFARLAND, supra note 11, at 220-22.
83. See Act of Mar. 3, 1819, ch. 54, 3 Stat. 496, 500 (1819). Congress had approved the position two years earlier, but did not fund the newly created position of clerk to the Attorney General until 1819. See Bloch, supra note 23, at 619 n.185. By 1857, the Attorney General had a staff of twenty assistants, mostly due to the Attorney General's responsibility to review the decisions of the land commissions and to represent the government in land claims. See CUMMINGS & MCFARLAND, supra note 11, at 120-41.
84. Act of Aug. 2, 1861, ch. 37, § 1, 12 Stat. 285, 285 (1861). But cf. CUMMINGS & MCFARLAND, supra note 11, at 219 (noting that, even after being charged with the supervision of the district attorneys in 1861, "[o]nly in cases of 'peculiar' importance did the Attorney General have time to advise district attorneys"). Even after the Civil War, the district attorneys "remained all but completely independent." Id. at 218. Attorney General Homer Cummings recounted an episode from 1882, where the district attorney for Washington, D.C. allowed the grand jury to be dismissed (knowing that the statute of limitations would soon expire) in order to frustrate the Attorney General's plans for vigorous enforcement of postal fraud violators. See id. at 257.
85. CUMMINGS & MCFARLAND, supra note 11, at 219-20; see also 20 Op. Att'y Gen. 714, 715-16 (1894) (recognizing that the Department of the Treasury, not the Department of Justice, had control over criminal prosecutions of revenue fraud); Bloch, supra note 23, at 619 n.187.
86. See Bell, supra note 7, at 1054 ("Congress [exhibited] a curious ambivalence about the role of the Attorney General and the Department of Justice, appearing to give them total control over the nation's legal business on the one hand but failing to take action necessary to make that control effective on the other.").
87. Id.; see also CUMMINGS & MCFARLAND, supra note 11, at 487.
88. Act of June 22, 1870, ch. 150, § 1, 16 Stat. 162, 162 (1870) ("[T]here shall be, and is hereby, established an executive department of the government of the United States, to be called the Department of Justice, of which the Attorney-General shall be the head."); see also 28 U.S.C. § 501 (1994) (current version) ("The Department of Justice is an executive department of the United States . . . ."). Congress did not give the Department of Justice its own building until 1934, so the Department of Justice took shape in offices in the Treasury Department building and in disparate, rented space across Washington. Bloch, supra note 23, at 619 n.188; see also EASBY-SMITH, supra note 7, at 21 (citing Congressional findings that in 1899 the building occupied by the Justice Department was "too small for its purpose, [was] unsafe, over-crowded, and dangerously over-loaded, and [had] been pronounced unsafe after examination by the proper officials of the Treasury Department"). As a result, the department solicitors remained in their own buildings, further complicating the Department's efforts to unify the government's legal representation under the Attorney General's command. Id.
89. § 16, 16 Stat. at 164 ("[T]he Attorney General shall have supervision of the conduct and proceedings of the various attorneys for the United States in the respective judicial districts . . . ."); see also EASBY-SMITH, supra note 7, at 19-20. But cf. Bell, supra note 7, at 1054 (arguing that, at least with respect to attorneys assigned to other executive departments, Congress continued to take "steps that showed it had not been serious about centralizing all legal activity under the Attorney General").
90. The Department of Justice management in Washington, D.C. is known as "Main Justice." See JIM MCGEE & BRIAN DUFFY, MAIN JUSTICE: THE MEN AND WOMEN WHO ENFORCE THE NATION'S CRIMINAL LAWS AND GUARD ITS LIBERTIES 7 (1996);
91. Daniel C. Richman, Federal Criminal Law, Congressional Delegation, and Enforcement Authority, 46 UCLA L. REV. 757, 781 (1999). The term "Main Justice" refers not only to the historic 1934 building that serves as the Department's headquarters, but also more generally to the Department's management as well as the "litigating divisions," which are located in Washington, D.C. and directed by an Assistant Attorney General. See MEADOR, supra note 5, at 15. The litigating divisions are the Criminal Division, the Civil Division, the Civil Rights Division, the Environment and Natural Resources Division, the Antitrust Division, and the Tax Division. See id. at 15-17. The geographic distance between Main Justice and the U.S. Attorneys' offices is indicative of a larger difference in perspective. Charles Ruff characterized the distinction between Main Justice and the field: [T]he Criminal Division lawyer is trained to respond to the demands of the Department [of Justice] and its national policies and practices, while the [A]ssistant United States [A]ttorney must respond to the needs of his community, of the law enforcement agencies who bring him cases, and of the judges of his district . . . .
92. Charles F.C. Ruff, Federal Prosecution of Local Corruption: A Case Study in the Making of Law Enforcement Policy, 65 GEO. L.J. 1171, 1207 (1977). This is perhaps an idealized view. A former U.S. Attorney characterized intervention by Main Justice as more nuisance than technical assistance: "A good U.S. Attorney's office . . . is usually much better equipped to handle a complex criminal prosecution than the young trial attorneys from the Department of Justice, who travel around the country primarily because they are looking for courtroom experience." SEYMOUR, supra note 43, at 48.
93. EISENSTEIN, supra note 6, at 11. According to Daniel Meador, Because U.S. Attorneys were not brought under the Attorney General until 1870 and because they come into office through presidential appointment with heavy senatorial involvement, an aura of independence and autonomy has grown up around these offices. This has always made it difficult to coordinate their work effectively with departmental policies. MEADOR, supra note 5, at 17
94. See MEADOR, supra note 5, at 17.
95. See infra Part II.B (discussing senatorial courtesy).
96. See MEADOR, supra note 5, at 138-40 (comments of Griffin Bell, former Attorney General, and Philip Heymann, former Assistant Attorney General and Deputy Attorney General).
97. 28 U.S.C. § 519 (1994) (directing the Attorney General to "supervise . . . [and] direct all United States [A]ttorneys . . . in the discharge of their respective duties").
98. See 28 U.S.C. § 518(b) (1994) (authorizing the Attorney General to remove U.S. Attorneys from particular cases when she believes that it would be "in the interests of the United States").
99. For a discussion of the broad discretion exercised by prosecutors generally, see James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521, 1524-37 (1981).
100. There are approximately 2500 Attorneys assigned to "Main Justice" in Washington, D.C. and approximately 5000 Attorneys in the various U.S. Attorneys' offices. Justice Mgmt. Div., U.S. Dep't of Justice, 2000 Budget Summary, available at http://www.usdoj.gov/jmd/2k-summary/2ktoc.html (last visited Nov. 8, 2001). In 1999, the ninety-four U.S. Attorneys' offices filed 50,779 criminal indictments against 71,560 defendants. EXECUTIVE OFFICE FOR U.S. ATTORNEYS, U.S. DEP'T OF JUSTICE, supra note 13, at 12.
101. For an interesting discussion on how the expanded scale of federal law enforcement is affecting the role of the U.S. Attorney, see Panel Discussion: The Prosecutor's Role in Light of Expanding Federal Criminal Jurisdiction, 26 FORDHAM URB. L.J. 657 (1999).
102. See, e.g., U.S. ATTORNEYS' MANUAL, supra note 6, § 9-2.136 (requiring prior authorization for overseas terrorism cases); id. § 9-110.101 (same for RICO charges); id. § 9-2.400 (listing prosecutorial decisions requiring prior approval).
103. The public record does not evidence an accurate assessment of the relative authority of U.S. Attorneys and Main Justice. Because prosecutorial discretion is cloaked in secrecy and because of the institutional loyalty of Department of Justice employees, the public rarely knows when Washington, D.C. is directing prosecutive decisions or even when a struggle for control has occurred. James Eisenstein's study of the U.S. Attorneys contains a lengthy discussion of the "undercurrent of tension and subdued hostility" that characterizes most interactions between the U.S. Attorneys' offices and Main Justice. EISENSTEIN, supra note 6, at 58. See generally id. at 54-125 (describing the "fascinating and complex relations between [the U.S. Attorneys] and the Department of Justice"). Eisenstein's Counsel for the United States remains the seminal study of the U.S. Attorneys and their relationship to the Department of Justice, but even this book is forced to rely on anonymous, anecdotal evidence because of the dearth of recorded evidence relating to the endemic struggles for control and autonomy that pervade this relationship. See id. at 56-58 (quoting anonymous sources).
104. Richard S. Frase, The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion, 47 U. CHI. L. REV. 246, 303 (1980).
105. Richman, supra note 79, at 781 (footnote omitted); see also U.S. ATTORNEYS' MANUAL, supra note 6, § 3-2.140 ("United States Attorneys conduct most of the trial work in which the United States is a party.").
106. Richman, supra note 79, at 808 (discussing the integrity exhibited by the U.S. Attorneys' offices during the Watergate era); see also SEYMOUR, supra note 43, at 76.
107. Appropriations for 1961: Hearings on the Dep't of Justice Before the Subcomm. on the Dep'ts of State and Justice, the Judiciary, and Related Agencies of the House Comm. on Appropriations, 86th Cong. 251 (1960) (statement of John J. Rooney, Subcommittee Chairman) ("The U.S. [A]ttorneys are not only the field representatives of the Department of Justice - they are the sole instruments through which the [f]ederal laws are enforced . . . . The effectiveness of their work materially influences the degree of respect and compliance which the citizenry accords the Nation's laws.").
108. See United States v. Williams, 504 U.S. 36, 44-45 (1992) (discussing federal prosecutors' broad discretion in what to present to the grand jury).
109. Laurie L. Levenson, Working Outside the Rules: The Undefined Responsibilities of Federal Prosecutors, 26 FORDHAM URB. L.J. 553, 560 (1999) ("The law does not pretend to dictate when a prosecutor may open an investigation." (citing United States v. Luttrell, 923 F.2d 764 (9th Cir. 1991) (holding that probable cause or reasonable suspicion are not prerequisites for initiating investigations of individuals))).
110. See United States v. Armstrong, 517 U.S. 456 (1996) (discussing prosecutorial discretion in the charging decision); see also SEYMOUR, supra note 43, at 47 ("Even when a grand jury returns an indictment, a United States Attorney may refuse to sign the document, thereby rendering it null."); Ellen S. Podgor, The Ethics and Professionalism of Prosecutors in Discretionary Decisions, 68 FORDHAM L. REV. 1511, 1516-18 (2000) (discussing prosecutors' "enormous power" in the charging decision). As "determinate sentencing" narrows the range of available sentences for any particular crime, and parole and early release provisions are repealed, the power of U.S. Attorneys increases. The charging decision, in which the U.S. Attorney is imbued with vast discretion, determines the sentence in a way that used to depend largely on judges' discretionary authority. See infra notes 101-04 and accompanying text (discussing Sentencing Guidelines).
111. See 28 U.S.C. § 547 (1994) (defining the authority of U.S. Attorneys). See generally Richman, supra note 79, at 759 (discussing standards of prosecutorial discretion and determining that "substantive federal criminal law unquestionably delegates a staggering degree of discretionary authority to federal prosecutors").
112. See MEADOR, supra note 5, at 27-28. According to Daniel Meador, If the Department of Justice is to function rationally, policies must be established as to how the government's legal and investigative resources are to be used. This necessarily involves decisions that some laws are to be enforced more vigorously than others. These decisions will be grounded in the general philosophy and policies of the Administration in power. Id.; see also EXECUTIVE OFFICE FOR U.S. ATTORNEYS, U.S. DEP'T OF JUSTICE, supra note 13, at 1 (remarking on the policy-setting role of the U.S. Attorneys); H. Richard Uviller, Poorer But Wiser: The Bar Looks Back at Its Contribution to the Impeachment Spectacle, 68 FORDHAM L. REV. 897, 899-902 (1999) (arguing that limited resources and the need to allocate insufficient resources is "essential in the development of the sense of justice, . . . and no decent prosecutor can survive without it").
113. Ruff, supra note 79, at 1201.
114. Id. at 1201-02 (footnote omitted); see also SEYMOUR, supra note 43, at 47 ("[T]he Attorney General is not in a position to review the facts and various considerations that go into most cases, and the job therefore falls to the United States Attorney.").
115. Pursuant to the Sentencing Reform Act of 1984, 18 U.S.C. § 3551, the "Sentencing Commission" was created to "establish a range of determinate sentences for categories of offenses and defendants according to various specified factors." Mistretta v. United States, 488 U.S. 361, 368 (1989). The guidelines are "binding on the courts." Id. at 367. If the sentencing court exercises its discretion to depart from the applicable guideline, it must "state its reasons for the sentence imposed" and "the 'specific reason' for imposing a sentence different from that described in the guideline." Id. at 367-68.
116. See Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 YALE L.J. 1681, 1696-98 (1992).
117. See Gary T. Lowenthal, Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform, 81 CAL. L. REV. 61, 72-73 (1993) (arguing that mandatory sentences strengthen prosecutors' ability to secure plea bargains); see also Levenson, supra note 95, at 565 ("While the formal act of sentencing rests with the court, a prosecutor's charging decisions very much will dictate what the judge's options are at the time of sentencing.").
118. United States v. Harrington, 947 F.2d 956, 966-67 (D.C. Cir. 1991) (Edwards, J., concurring); see also Panel Discussion: The Expanding Prosecutorial Role from Trial Counsel to Investigator and Administrator, 26 FORDHAM URB. L.J. 679, 686 (1999) (comments of U.S. District Judge John Martin, Jr. (S.D.N.Y.)) ("[W]hen you put into the hands of one person the decision of what crime to investigate, who to prosecute, and what the sentence should be, you have taken out of the system any check or balance."); Richman, supra note 79, at 763 ("Congress's creation (or approval) of a sentencing scheme that puts such a high premium on prosecutorial favor has thus contributed significantly to the movement of effective lawmaking authority from the courts to the executive branch." (footnote omitted)).
119. In his dissenting opinion in Morrison, Justice Scalia opined that the prosecutor's power and discretion are so unique that "[o]nly someone who has worked in the field of law enforcement can fully appreciate the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation." Morrison v. Olson, 487 U.S. 654, 727 (1988) (Scalia, J., dissenting). In the words of Attorney General Robert Jackson, One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. . . . 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, and the proof the most certain. Attorney General Robert Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys (Apr. 1, 1940) [hereinafter Jackson Address],
120. reprinted in 24 J. AM. JUDICATURE SOC'Y 18, 19 (1940), quoted in Morrison v. Olson, 487 U.S. 654, 727-28 (1988) (Scalia, J., dissenting).
121. Jackson Address, supra note 105, at 18.
122. U.S. CONST. art. II, § 2, cl. 2.
123. Michael J. Gerhardt, Toward a Comprehensive Understanding of the Federal Appointments Process, 21 HARV. J.L. & PUB. POL'Y 467, 477 (1998); id. at 478 ("The Clause's allocation of authority means that that [sic] both the president and the Senate will be involved with a wide variety of appointments.").
124. Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam).
125. See infra Part III (discussing the distinction between principal and inferior officers).
126. U.S. CONST. art. II, § 2, cl. 2.
127. See U.S. SENATE, COMM. ON GOVERNMENTAL AFFAIRS, 106TH CONG. POLICY AND SUPPORTING POSITIONS (2000), available at www.opm.gov/ plumbook/. Including judges and military officers, there are more than 3000 offices that are subject to Senate confirmation. See Gerhardt, supra note 108, at 478.
128. Gerhardt, supra note 108, at 481 (footnote omitted). The Senate, through its role in the confirmation process and the invocation of senatorial courtesy, discussed infra Part II.B, also seeks to influence the operation and administration of the executive branch. See Michael J. Gerhardt, Putting Presidential Performance in the Federal Appointments Process in Perspective, 47 CASE W. RES. L. REV. 1359, 1366 (1997) ("The more offices requiring confirmation created by Congress the more chances Senators have had to consult with the President in filling those positions and thus the more bargaining chips Senators have had available to use in dealing with the President on appointments and related legislative matters.").
129. Edmond v. United States, 520 U.S. 651, 659 (1997). Professor Gerhardt argues that the process was not designed to ensure the highest quality of appointments, but rather to reduce the likelihood of particularly inappropriate appointments. Gerhardt, supra note 108, at 474.
130. Many legal scholars have endeavored to divine the extent to which the Framers intended to create a "unitary" executive, and what implications this has on the separation-of-powers issues generally and the appropriateness of particular limits on presidential appointment and removal authority. See, e.g., Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992) (making the case for a unitary executive); Lessig & Sunstein, supra note 27 (responding to Professors Calabresi and Rhodes and arguing that the Constitution is ambiguous with respect to how much authority is vested in the President); see also Calabresi & Prakash, supra note 23 (responding to Professors Lessig & Sunstein).
131. Even a narrow reading of the executive authority probably must admit that "[i]t is the President's duty to stop his subordinates from executing the laws oppressively and from using their positions of power to contravene the law." John R. Martin, Morrison v. Olson and Executive Power, 4 TEX. REV. L. & POL. 511, 520 (2000); see U.S. CONST. art. II, § 3 ("[The President] shall take Care that the Laws be faithfully executed . . . ."). This academic debate, consequential as it is in other contexts, is not germane to this Article, which takes the office of the U.S. Attorney as it is found - ensconced within the executive branch in the Department of Justice.
132. See Freytag v. Commissioner, 501 U.S. 868, 883 (1991) ("The 'manipulation of official appointments' had long been one of the American revolutionary generation's greatest grievances against executive power because 'the power of appointment to offices' was deemed 'the most insidious and powerful weapon of eighteenth century despotism.'" (quoting GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 79, 143 (1969))).
133. See JOSEPH P. HARRIS, THE ADVICE AND CONSENT OF THE SENATE 6 (1953) (discussing the debate over the Appointments Clause at the Constitutional Convention of 1787 ("The evils of legislative appointment of public officers were well known to members of the Constitutional Convention of 1787, who frequently referred to the intrigue, caballing, and irresponsibility which had marked the selection of officers by the state legislatures."));
134. see also Theodore Y. Blumoff, Separation of Powers and the Origins of the Appointments Clause, 37 SYRACUSE L. REV. 1037, 1061-70 (1987) (describing debates on the Appointments Clause at the Constitutional Convention of 1787).
135. See Ryder v. United States, 515 U.S. 177, 182 (1995) ("The [Appointments] Clause is a bulwark against one branch aggrandizing its power at the expense of another branch . . . .").
136. See William G. Ross, The Senate's Constitutional Role in Confirming Cabinet Nominees and Other Executive Officers, 48 SYRACUSE L. REV. 1123, 1130-31 (1998).
137. It was by no means inevitable that the chief executive would be granted primary authority for nominating officers. The tradition of executive appointment was a vestige of royal prerogative, one that had raised the ire of the pre-Revolutionary War colonists. See THE DECLARATION OF INDEPENDENCE para. 12 (U.S. 1776) ("He [King George III of England] has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance."). In the words of one commentator, The [F]ramers came to Philadelphia mindful of the colonial legacy of monarchical appointment abuses, yet equally fearful of legislative tyranny. Unlike their commitment to functional divisions of government, a bicameral legislature and judicial tenure and salary protections . . . neither political theory nor history spoke with even a modicum of clarity about the appointment prerogative's proper locus. Blumoff, supra note 117, at 1069. On the one hand, the power to appoint was most commonly assigned to the executive in colonial governments, with varying degrees of legislative oversight.
138. See JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 81, at 68 (Ronald D. Rotunda & John E. Nowack eds., 1987) (1833) (discussing appointment practices in the colonial governments ("The governors also had power, with advice of council, to establish courts, and to appoint judges and other magistrates, and officers for the province . . . . Under this form of government the provinces of New-Hampshire, New-York, New-Jersey, Virginia, the Carolinas, and Georgia, were governed . . . .")). In Massachusetts, the royally appointed governor had the "right of nominating and with the advice of the council [also appointed by the crown] of appointing all . . . sheriffs, provosts, marshals, and justices of the peace, and other officers of [the] courts of justice." Id. § 27, at 25. On the other hand, some colonial governments had experimented with legislative appointment of executive-branch officers. The 1701 Charter of Pennsylvania provided for an annual assembly of delegates from each county "to have the usual legislative authority of other colonial assemblies, and also power to nominate certain persons for office to the governor." Id. § 57, at 53; see also Casper, supra note 27, at 217 (discussing the original appointment practices utilized in the newly constituted state governments ("[S]tates distributed the power of appointments in various ways, but legislative controls predominated.")).
139. Freytag, 501 U.S. at 878.
140. Edmond v. United States, 520 U.S. 651, 659 (1997) (quoting THE FEDERALIST NO. 76 (Alexander Hamilton)).
141. See THE FEDERALIST NO. 76, at 456-57 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("[E]very advantage to be expected from such an arrangement would, in substance, be derived from the power of nomination . . . . There can, in this view, be no difference between nominating and appointing.").
142. See Harold J. Krent, Separating the Strands in Separation of Powers Controversies, 74 VA. L. REV. 1253, 1269 (1988)
143. (citing THE FEDERALIST NO. 76, at 457 (Alexander Hamilton) (Clinton Rossiter ed., 1961)).
144. HARRIS, supra note 117, at 24 (internal quotation marks omitted) (quoting Gouverneur Morris in THE DEBATES OF THE FEDERAL CONVENTION OF 1787, REPORTED BY JAMES MADISON 529 (Gaillard Hunt and James Scott Brown eds., 1920)).
145. HARRIS, supra note 117, at 26 (alteration in original) (citing JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION IV at 116-18 (1888)). John Adams also criticized the Senate's role. Writing to Roger Sherman, Adams worried that granting the power to "advise and consent" to the Senate would cede an unacceptable influence over the administration of the executive branch: [The Senate's role] will weaken the hands of the Executive. . . . Officers of the Government, instead of having a single eye and undivided attachment to the Executive branch, as they ought to have, consistent with law and the constitution, will be constantly tempted to be factious with their factious patrons in the Senate. The President's own officers, in a thousand instances, will oppose his just and constitutional exertions, and screen themselves under the wings of their patrons in the Senate.
146. Id. at 30 (quoting Letter from John Adams to Roger Sherman, in 4 THE WORKS OF JOHN ADAMS 427-42 (Charles Francis Adams ed., 1852-65)).
147. See HARRIS, supra note 117, at 376 ("If one principle in regard to appointments was prized above others by the [F]ramers of the Constitution, it was that of establishing definite responsibility.").
148. See Freytag v. Commissioner, 501 U.S. 868, 884 (1991).
149. Weiss v. United States, 510 U.S. 163, 186 (1994) (Souter, J., concurring) (quoting THE FEDERALIST NO. 77 (Alexander Hamilton)).
150. Bowsher v. Synar, 478 U.S. 714, 722 (1986). But cf. Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny, 86 IOWA L. REV. 393, 442-43 (2001) (questioning the effectiveness of the Appointments Clause in increasing accountability in the appointment or performance of U.S. Attorneys).
151. Weiss, 510 U.S. at 191 (Souter, J., concurring).
152. Freytag, 501 U.S. at 880; see also Weiss, 510 U.S. at 188 (Souter, J., concurring) ("[N]o branch may abdicate its Appointments Clause duties.").
153. INS v. Chadha, 462 U.S. 919, 944 (1983).
154. See, e.g., THE FEDERALIST No. 76, at 456-57 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (describing the President's power to nominate as tantamount to power to appoint).
155. Gerhardt, supra note 108, at 480. The Senate "has turned down only 105 of the 2.4 million executive appointments that the President has made during the past two centuries." Ross, supra note 119, at 1127. This figure does not accurately reflect the interplay between the President and the Senate, however, because many candidates are not nominated after Senators informally articulate their misgivings, and many more nominees are withdrawn when it is clear they will not be confirmed. Moreover, while the structure gives the President an advantage in naming officers to the federal government in Washington, D.C., the tradition of senatorial courtesy, discussed infra Part II.B, grants the Senate a more prominent role with respect to state-based field officers of the federal government (such as U.S. Attorneys).
156. John O. McGinnis, The President, the Senate, the Constitution, and the Confirmation Process: A Reply to Professors Strauss and Sunstein, 71 TEX. L. REV. 633, 653 (1993) (alteration in original).
157. STEPHEN L. CARTER, THE CONFIRMATION MESS: CLEANING UP THE FEDERAL APPOINTMENTS PROCESS 159 (1994) (identifying the Senate's focus on disqualifying factors as a problem). But cf. Gerhardt, supra note 108, at 480 n.26 ("Though Professor Carter does not acknowledge it, this focus is a product of the constitutional design of the process.").
158. Confirmation battles have, at various times, engaged the public's interest and exposed politicians to opprobrium and eventual electoral defeat for taking positions unacceptable to their constituents. See Gerhardt, supra note 108, at 489-91. The most striking contemporary example was the confirmation battle that culminated in Justice Thomas's elevation to the Supreme Court. See JANE MAYER & JILL ABRAMSON, STRANGE JUSTICE: THE SELLING OF CLARENCE THOMAS 352-54 (1994) (describing the repercussions of the Senate's bitter confirmation battle over Clarence Thomas and stating that over a year after Justice Thomas's confirmation Senators "continued to feel the wrath of dissatisfied voters"). The confirmation hearings were credited with focusing national attention on sexual harassment and with exposing several Senators to reproach.
159. See Ronald Dworkin, One Year Later, the Debate Goes On, N.Y. TIMES, Oct. 25, 1992, § 7 (Book Review), at 33 (commenting that the hearings "taught us much about the character of some of our most prominent officials"); see also Gerhardt, supra note 113, at 1372-73 (discussing the characterrevealing nature of confirmation battles). It must be remembered, however, that confirmation hearings are a fairly recent invention and that the Senate did not always conduct its business as publicly as today. See infra note 139. Given the popular election of the Senators and the prominence that confirmation battles have come to enjoy, the nomination and confirmation procedure can be characterized as providing not only structural but also political accountability to the appointments process.
160. An accurate understanding of the intent underlying the Appointments Clause and its reliance on the Senate needs to be informed by an understanding of the original composition of the Senate. Under the original constitutional structure, Senators, in addition to serving six-year terms, were selected by the state legislatures. U.S. CONST. art. I, § 3 (requiring two Senators from each state to be "chosen by the Legislature thereof), amended by U.S. CONST. amend. XVII. These features were supposed to bestow a high-minded, judicious, and deliberative nature on the Senate and an appropriate temperament for working with the executive to ensure competent appointments. See Gerhardt, supra note 108, at 476. Whatever validity this presumption enjoyed in 1789, the ratification of the Seventeenth Amendment in 1913, which calls for the popular election of Senators, altered this original dynamic and has transformed the Senate into a much more democratically accountable institution. See U.S. CONST. amend. XVII ("The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof . . . ."). Indeed, until 1929 the Senate operated under the rule that it met in closed executive session, including confirmation proceedings. See HARRIS, supra note 117, at 249-55. Nominees, even to the judiciary, were never requested to appear before the Senate (or any of its committees) before 1925. See id. at 117-18; Gerhardt, supra note 108, at 491. The practice of requesting that nominees to the Supreme Court appear before the Senate Committee on the Judiciary to answer questions dates only to the mid-1950s when Southern Senators, disturbed by the Supreme Court's Equal Protection jurisprudence, demanded that John Harlan appear before them in 1955 to answer questions about his views on desegregation. Gerhardt, supra note 108, at 491. Every nominee to the Supreme Court since has appeared to answer questions from Senators. Id. Confirmation hearings have become public spectacles and the Senators are "subject to popular review, comment, and reprisal" for their performance in the appointments arena. Id. at 489.
161. The Senate insisted on such deference even from President Washington. HARRIS, supra note 117, at 40-41. President Washington nominated Benjamin Fishbourn to the post of naval officer of the Port of Savannah, Georgia. Id. at 40. There was no objection to the nominee's fitness to serve in the office, but the Georgia Senators favored their own candidate. Id. at 40-41. Out of "courtesy" to their colleagues, the Senators rejected President Washington's nominee. Id. at 40. Washington acceded and nominated the Georgia Senators' choice. Id. at 40-41. According to Joseph Harris, The Fishbourn case initiated the custom which requires the President to consult with the [S]enators from the state in which a vacancy occurs, and to nominate a person acceptable to them; if he fails to do so, the Senate as a courtesy to these [S]enators will reject any other nominee regardless of his qualification. Id. at 41.
162. Id. at 27.
163. See id. at 215-37. This practice has traditionally given Senators a strong hand in the selection of U.S. Attorneys. Id. For example, Strom Thurmond, Jr., twenty-eight years old and just three years out of law school, was recommended for U.S. Attorney in South Carolina by his father, Strom Thurmond. "In a nod to senatorial courtesy on such appointments, [President] Bush obliged." Robert E. Pierre, In South Carolina, It's All in the Family: Thurmond Jr. Wins Bipartisan Support for U.S. Attorney Despite Inexperience, WASH. POST, Aug. 19, 2001, at A5. Professor Meador has commented that the "selection of U.S. Attorneys may be even more politically charged than selection of judges; [S]enators may feel more of a patronage claim on U.S. Attorneys' positions." MEADOR, supra note 5, at 47;
164. cf. Griffin B. Bell & Daniel J. Meador, Appointing United States Attorneys, 9 J.L. & POL. 247 (1993) (arguing that the Attorney General should be vested with sole authority to appoint U.S. Attorneys).
165. See CONGRESSIONAL QUARTERLY'S GUIDE TO CONGRESS 282 (5th ed. 2000) (stating that, when neither Senator is from the President's party, the courtesy is traditionally extended to "party members in the House [of Representatives] or to local party officials").
166. See Richman, supra note 79, at 790.
167. At the Constitutional Convention, those in favor of the Senate's role argued that Senators would be more likely than any single President to know qualified candidates throughout the country. See 2 MAX FARRAND, supra note 28, at 41, 81.
168. See Richman, supra note 79, at 790 (remarking that senatorial courtesy generally ensures "that U.S. Attorneys have firm roots in the local power structure and at least appreciate the preferences of the special interests that dominate it").
169. Harris focuses on the abuse and corrosive effect of the patronage process that has characterized senatorial courtesy at different times in our history. See HARRIS, supra note 117, at 228-31. There is a coordinate concern that such patronage undermines executive control. See supra note 126.
170. Harris cites several examples of senatorial over-reaching that led to negative political consequences. HARRIS, supra note 117. One example involved the appointment of a U.S. Attorney. Id. at 88-90. President Cleveland sought the removal of George Duskin and the appointment of John Burnett to the position of U.S. Attorney (then still known as district attorney) for Alabama. Id. When the Senate became obstreperous, President Cleveland mounted a spirited defense of the Presidents' authority to control the service of executive-branch officers. According to Harris, "The Senate lost prestige in this contest with the President. Public opinion responded to the vigorous message of the President defending the executive power and regarded the controversy as merely a maneuver by Republican [S]enators" to serve partisan interests. Id. at 90; see also Michael J. Gerhardt, supra note 113, at 1383 ("[President Andrew] Jackson decided to use the Senate's blatant partisanship [in the appointments process] against it in the next presidential election.").
171. See generally HARRIS, supra note 117, at 231-37 (discussing the debate over whether senatorial courtesy is consistent with the Constitution and the Framers' original intentions).
172. U.S. CONST. art. II, § 2, cl. 2.
173. Edmond v. United States, 520 U.S. 651, 660 (1997) (citing 2 MAX FARRAND, supra note 28, at 627-28); see also Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 808 (1999) (discussing this history and suggesting that the Excepting Clause "was viewed as a minor housekeeping measure"). As one commentator concluded, "The lack of discussion no doubt reflects the unspoken consensus that the President (as well as the judiciary, and the heads of executive departments) must have the authority to hire and fire their own assistants." Blumoff, supra note 117, at 1069 n.194.
174. See United States v. Germaine, 99 U.S. 508, 510 (1878).
175. STORY, supra note 120, § 793, at 566-67 (emphasis added).
176. Edmond, 520 U.S. at 660.
177. No procedure for appointing U.S. Attorneys (or for that matter, the Attorney General) was specified in the Judiciary Act of 1789. Nevertheless, from the outset, the President has nominated individuals to serve as U.S. Attorneys and submitted the nominations to the Senate for advice and consent. See supra note 62 and accompanying text.
178. See 28 U.S.C. § 546(a) (1994).
179. See id. § 541(b) (establishing a four-year term but stating that a U.S. Attorney "shall continue to perform the duties of his [or her] office until his [or her] successor is appointed and qualifies").
180. See MEADOR, supra note 5, at 47 ("[S]election of U.S. Attorneys may be even more politically charged than selection of judges; [S]enators may feel more of a patronage claim on U.S. Attorneys' positions." (emphasis added)).
181. See Richman, supra note 79, at 785 (noting that in the federal system "prosecutorial discretion is primarily exercised" by U.S. Attorneys, who are "beholden to legislators, who in turn nurture ties to state and local institutions" (footnote omitted)).
182. Id. at 789. Of course, court-appointed U.S. Attorneys do not necessarily have this political pedigree or support. Court-appointed U.S. Attorneys rely on, and in turn reflect on, the stature and standing of the district court.
183. 28 U.S.C. § 546(a), (c)(2) (1994). This system was adopted pursuant to section 69 of the Criminal Law and Procedure Technical Amendments Act of 1986, approved November 10, 1986. Pub. L. No. 99-646, § 69, 100 Stat. 3592, 3616-17 (1986) (amending 28 U.S.C. § 546). Prior to that enactment, the Attorney General had no authority to appoint a U.S. Attorney in the event of a vacancy; the district court had sole discretion to appoint a U.S. Attorney when there was a vacancy. See United States v. Solomon, 216 F. Supp. 835, 836 (S.D.N.Y. 1963) (citing 28 U.S.C. § 506 (1948), 1 ch. 646 § 1, 62 Stat. 909 (codified as amended at 28 U.S.C. § 546 (1994)); see also United States v. Gantt, 194 F.3d 987, 998 (9th Cir. 1999) (remarking that district courts have "[s]ince the Civil War . . . been empowered to fill vacancies in the office of United States Attorney"). Whatever the defects of the current system, they are obviously less offensive than the old one, which denied the executive branch any formal ability to affect the person appointed as U.S. Attorney in the inevitable interim between the emergence of a vacancy and the eventual Senate confirmation of a presidential nominee. See In re Grand Jury Proceedings, 673 F. Supp. 1138, 1142 n.10 (D. Mass. 1987) (remarking that "[t]he 1986 amendments . . . would appear to further insulate [the court appointment of U.S. Attorneys] from constitutional attack"). The only statutory constraint on whom the Attorney General may appoint is that, pursuant to subsection (b), "[t]he Attorney General shall not appoint as United States [A]ttorney a person to whose appointment by the President to that office the Senate refused to give advice and consent." 28 U.S.C. § 546(b) (1994).
184. 28 U.S.C. § 546(d) (1994). Nothing in the statute constrains the district court's discretion in who to appoint as the U.S. Attorney.
185. Id.; see also Gantt, 194 F.3d at 1000 ("The judicial branch is not required to appoint a United States Attorney; it is simply empowered to do so."). Although the statute does not use that term and there is no limitation on their authority, U.S. Attorneys who are appointed pursuant to this process are referred to as "interim" U.S. Attorneys. See United States v. Hilario, 218 F.3d 19, 24 (1st Cir. 2000), cert. denied, 121 S. Ct. 572 (2000). There is no specific limit on the duration of an "interim" U.S. Attorney's tenure, other than the nomination by the President and confirmation by the Senate of another U.S. Attorney. See id. at 23; Tom Rickhoff, The U.S. Attorney: Fateful Powers Limited, 28 ST. MARY'S L.J. 499, 500 (1997) (remarking that the Western District of Texas "languished without a presidentially-appointed leader since the Branch Davidian nightmare" from 1992 through 1997). The statute does not address the scenario where an Attorney General-appointed U.S. Attorney's 120-day tenure has expired, but the district court has not exercised its discretionary authority to appoint a U.S. Attorney. The district court in Massachusetts upheld the authority of the Attorney General to appoint an "acting" U.S. Attorney after the expiration of an "interim" U.S. Attorney's 120-day appointment. See In re Grand Jury Proceedings, 673 F. Supp. 1138, 1142-43 (D. Mass. 1987).
186. See Interview with David Margolis and Bernie Delia, Associate Deputy Attorneys General, in Washington, D.C. (Dec. 28, 2000) (on file with author) (characterizing the process utilized by the Department of Justice in administering 28 U.S.C. § 546(c)-(d)).
187. See id.
188. The statute confers authority on "the district court." 28 U.S.C. § 546(d) (1994). How the various district courts exercise this authority (i.e., through consensus, committee, or delegation exclusively to the chief judge) is a matter of internal court policy and is not a matter of public record.
189. See Interview with David Margolis and Bernie Delia, Associate Deputy Attorneys General, in Washington, D.C. (Dec. 28, 2000) (on file with author).
190. See id.
191. See id
192. See id.
193. See id.
194. See id. Although the practice of including the district judge from the outset has been relatively successful at ensuring that the Attorney General's nominee is accepted by the district court, it has not been foolproof. For example, during Attorney General Janet Reno's tenure, two separate district courts each replaced the Attorney General's appointee with a U.S. Attorney of its own choosing. The two appointments that departed from the Attorney General's 120-day appointee occurred in Puerto Rico and in one district within the continental United States. In Puerto Rico, a vacancy occurred in the office of the U.S. Attorney in May 1993. See United States v. Hilario, 218 F.3d 19, 21 (1st Cir. 2000), cert. denied, 121 S. Ct. 572 (2000). The Attorney General appointed Charles Fitzwilliams to fill the vacancy. Id. Because the President failed to name a replacement within 120 days, Fitzwilliams' appointment lapsed and the position once again became vacant. On September 9, 1993, the judges of the United States District Court for the District of Puerto Rico responded to the exigency and appointed a career Justice Department lawyer, Guillermo Gil, as interim United States Attorney. Id. (citation omitted). President Clinton never nominated a U.S. Attorney for the District of Puerto Rico; Gil served as the district court's appointee as U.S. Attorney for more than seven years. See United States v. Sotomayor-Vazquez, 249 F.3d 1, 20 (1st Cir. 2001). In the other instance, according to Associate Deputy Attorneys General David Margolis and Bernie Delia, a Senate-confirmed U.S. Attorney died in office. See Interview with David Margolis and Bernie Delia, Associate Deputy Attorneys General, in Washington, D.C. (Dec. 28, 2000) (on file with author). The Attorney General chose an interim U.S. Attorney who served for 120 days. Id. At the expiration of the 120-day term, the district court refused to reappoint the Attorney General's appointee, instead choosing its own U.S. Attorney. Id. The court-appointed U.S. Attorney served in that capacity for over two years. Id. The courts took these actions without explanation. Perhaps the courts should be required to make their appointment process more transparent. There is no accepted method for inquiring into judges' motives and procedures for making particular decisions, however, and if such inquiries were issued, there would be little incentive for the judges to respond (unlike politically accountable actors). This illustrates one of the problems with the court appointment of U.S. Attorneys: It shields an inherently political process from public scrutiny.
195. See, e.g., SEYMOUR, supra note 43, at 50 (remarking that, while maintaining good relations with the local federal judges is an important responsibility of the U.S. Attorney, it "is a delicate balancing act, for the United States Attorney is a litigant who may not engage in ex parte, or private, communication with the judge").
196. See In re Farrow, 3 F. 112, 115-17 (C.C.N.D. Ga. 1880) (recognizing the President's authority to make a recess appointment even where the court had named a U.S. Attorney to fill the vacancy because the position remained legally "vacant"); Staebler v. Carter, 464 F. Supp. 585, 594 (D.D.C. 1979); see also Memorandum from Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal Counsel, to William P. Tyson, Director, Executive Office for United States Attorneys 3 (Nov. 13, 1986) [hereinafter Alito Memorandum] (on file with author) (concluding that a vacancy exists in the office of U.S. Attorney at the expiration of the 120-day period defined in 28 U.S.C. § 546(c)).
197. See 28 U.S.C. § 546(a) (1994) ("[T]he Attorney General may appoint a United States [A]ttorney for the district in which the office of United States [A]ttorney is vacant."); see also In re Grand Jury Proceedings, 673 F. Supp. 1138, 1142 n.11 (D. Mass. 1987) (recognizing that "it is not clear from this Court's reading of the statute, that the Attorney General himself would be foreclosed from making a second interim appointment").
198. 132 CONG. REC. 32707, 32806 (statement of Rep. Berman).
199. Id.
200. Alito Memorandum, supra note 174, at 3 (citing legislative history); see also 17 Op. Off. Legal Counsel 1, 1-5 (1993) (contrasting Attorney General's statutory authority to fill U.S. Marshal vacancies which reserves no role for courts and citing Alito Memorandum, supra note 174).
201. See Memorandum from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, to Arnold I. Burns, Deputy Attorney General 1 (Apr. 15, 1987) [hereinafter Cooper Memorandum] (on file with author). According to the Office of Legal Counsel, It 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. Id. Given the legal definition of "vacancy," it is unclear why the Attorney General would need to wait for the President to remove the court-appointed U.S. Attorney. See Farrow, 3 F. at 115-17.
202. Cooper Memorandum, supra note 179, at 1.
203. If the current, court-appointment system is deemed to be constitutional and is retained, Congress should at least clarify its intended operation. See United States v. Hilario, 218 F.3d 19, 24 (1st Cir. 2000) ("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."), cert. denied, 121 S. Ct. 572 (2000). First, Congress should direct the district courts to appoint interim U.S. Attorneys under 28 U.S.C. § 546(d). The permissive "may" should be replaced with "shall," so that the statute would read as follows: "If [the Attorney General's] appointment expires under [the 120-day limit of] subsection (c)(2), the district court for such district shall appoint a United States [A]ttorney to serve until the vacancy is filled." In at least one instance, the judiciary has refused (or at least failed) to exercise its authority to appoint a U.S. Attorney, allowing the Attorney General to name an "acting" U.S. Attorney after the expiration of a prior 120-day "interim" appointment by the Attorney General. In re Grand Jury Proceedings, 673 F. Supp. 1138, 1138 (D. Mass. 1987). The uncertainty that is created by the permissive "may" exacerbates the statute's ambiguity with respect to the authority of the district court and the authority of the Attorney General. Therefore, Congress should clarify whether the Attorney General's authority is limited to one 120-day appointment. Although the Department of Justice currently interprets the statute in this way, the statutory language is susceptible to the reasonable interpretation that the Attorney General can affect successive 120-day appointments, particularly if the court does not act. Indeed, this construction has been suggested in one published district court opinion, see id., and by an Office of Legal Counsel interpretive memorandum. See Cooper Memorandum, supra note 179, at 1. If Congress intends to limit the Attorney General to no more than one 120-day appointment in the interim between presidential appointments (no matter how long the interim), it should say so unambiguously. Lastly, Congress should decide whether the office of the U.S. Attorney is "vacant" when it is occupied by a court-appointed U.S. Attorney. Prior judicial and executive-branch interpretations have reached the conclusion that the office is indeed vacant during the pendency of a court appointment. See supra note 174 and accompanying text. Although Congress cannot legislatively alter the President's constitutional authority to make recess appointments, Congress can determine when that office is legally "vacant," assuming, of course, that the U.S. Attorney is indeed an inferior officer. This is significant because if the position of U.S. Attorney is legally "vacant" while a court-appointed incumbent is in office, it could be argued that, under the statute as currently written, the Attorney General could replace a court-appointed U.S. Attorney with her own 120-day appointment. Congress ought to make these policy choices explicitly instead of leaving them open to executive-branch abuse, and ultimately, judicial branch resolution.
204. See 28 U.S.C. § 541(c) (1994) ("Each United States [A]ttorney is subject to removal by the President."); Parsons v. United States, 167 U.S. 324 (1897). Of course, U.S. Attorneys can also be removed through the impeachment process. See U.S. CONST. art. II, § 4.
205. See United States v. Solomon, 216 F. Supp. 835, 843 (S.D.N.Y. 1963).
206. See EISENSTEIN, supra note 6, at 12, 16. The Department of Justice has sought in recent years to "exercise greater supervisory control over decision-making by United States [A]ttorneys in the field, with a view to making federal prosecutive policy more uniform nationwide." Richman, supra note 79, at 781 (quoting NORMAN ABRAMS & SARA SUN BEALE, FEDERAL CRIMINAL LAW AND ITS ENFORCEMENT 6 (2d ed. 1993)). Nonetheless, "U.S. [A]ttorneys retain a remarkable degree of power." Id.; see also EISENSTEIN, supra note 6, at 108 (commenting on the independence of the U.S. Attorney's Office for the Southern District of New York (Manhattan), which "serves as a constant reminder to the department that its field offices can achieve a position of semi-autonomy . . . provid[ing] other U.S. [A]ttorneys with a model of how much independence is possible."). Indeed, "because of its legendary independence and tenacity" the Southern District of New York "is known as the 'sovereign district' of New York."
207. Chitra Ragavan, The Pardon Buck Stops Here: U.S. Attorney Mary Jo White Takes the Lead, U.S. NEWS & WORLD REPORT, Mar. 26, 2001, at 24.
208. See United States v. Gantt, 194 F.3d 987, 999 (9th Cir. 1999) ("United States Attorneys are clearly 'officers' of the United States." (citing Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam))).
209. See supra Part II.D.2.
210. See Edmond v. United States, 520 U.S. 651, 659-60 (1997) (noting that the administrative convenience of delegating authority to appoint was "deemed to outweigh the benefits of the more cumbersome procedure only with respect to . . . 'inferior Officers'"); see also United States v. Hilario, 218 F.3d 19, 24 (1st Cir. 2000) ("[T]he Clause makes nomination and confirmation the requisite appointment protocol for what have come to be known as 'principal officers' of the United States but allows Congress to permit a limited class of officials to appoint 'inferior officers' without the need for confirmation."), cert. denied, 121 S. Ct. 572 (2000).
211. Edmond, 520 U.S. at 661; see also STORY, supra note 120, at 566 ("In the practical course of the government, there does not seem to have been any exact line drawn, who are, and who are not, to be deemed inferior officers in the sense of the [C]onstitution, whose appointment does not necessarily require the concurrence of the [S]enate.").
212. 487 U.S. 654 (1988).
213. Id. at 671-73.
214. 520 U.S. 651.
215. Id. at 658-66.
216. The Independent Counsel Act expired on June 30, 1999. See 28 U.S.C. § 599 (1994); see also Supra, supra note 2, at A6.
217. See Donald C. Smaltz, The Independent Counsel: A View From Inside, 86 GEO. L.J. 2307, 2331 (1998) (characterizing the Independent Counsel as one who "stands in the shoes and is the functional equivalent of a United States Attorney, albeit with a narrow jurisdictional mandate").
218. Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (codified at 28 U.S.C. §§ 49, 591-99).
219. Morrison v. Olson, 487 U.S. 654, 660 (1988).
220. 28 U.S.C. § 49 (1994). One can question whether the Special Division actually constituted a "court of law," given that it heard no cases and had no jurisdiction except to administer the Independent Counsel provisions of the Act. See id. Although this tangential issue is not implicated when district courts appoint U.S. Attorneys (for district courts are surely "courts of law"), the district courts' continued interaction with the U.S. Attorney in the government's cases raises other serious issues. See infra Part IV.
221. See 28 U.S.C. § 592(c)(1)(a) (1994) (requiring the Attorney General to apply for the appointment of an Independent Counsel if the Attorney General determines that there are "reasonable grounds to believe that further investigation [or prosecution] is warranted"); see also Morrison, 487 U.S. at 661 (citing 28 U.S.C. § 592 (1994)).
222. 28 U.S.C. § 593(b)(1) (1994). Instead of appointing a new Independent Counsel, the Special Division could also add a new matter to the jurisdiction of an existing Independent Counsel.
223. Id. The Special Division's authority beyond the act of appointing the Independent Counsel - setting jurisdiction, and eventually, terminating the office - presented further complications with which Morrison had to grapple. See Morrison, 487 U.S. at 680-84. The Supreme Court characterized these powers as "incidental" to the appointment authority. Id. at 679. This determination is among the holdings in Morrison that have been criticized by scholars. See, e.g., Krent, supra note 124, at 1321. This related issue is not presented in the context of 28 U.S.C. § 546(d)'s authorization to appoint U.S. Attorneys; the district courts are not given any responsibilities to set the U.S. Attorneys' jurisdiction or to supervise their work. See United States v. Hilario, 218 F.3d 19, 27 (1st Cir. 2000) (finding it "significant that section 546(d) neither grants the judges of the district court authority to supervise or remove an interim United States Attorney whom they have appointed nor gives them power to determine (or even influence) how the appointee will enforce the laws"), cert. denied, 121 S. Ct. 572 (2000).
224. 28 U.S.C § 594 (1994).
225. See In re Sealed Case, 838 F.2d 476, 517 (D.C. Cir. 1988) (recognizing that the circumstances leading to the passage of the Act had "divide[d] the nation politically"), rev'd sub nom. Morrison v. Olson, 487 U.S. 654 (1988).
226. Morrison, 487 U.S. at 670-71.
227. Id. at 671.
228. Id. at 677 (stating that Congress "was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers").
229. Id. at 671.
230. Id.
231. Id. at 663 (citing 28 U.S.C. § 596(a)(1) (1994)).
232. Id. at 671.
233. Id.
234. Id.
235. Id. In retrospect, it is clear that the authority to litigate without supervision carried with it the ability to establish policy. In the course of the Whitewater investigation and ensuing prosecutions, the Whitewater Independent Counsel challenged executive-branch assertions of executive privilege and consequently affected executive-branch policy, and policy-making ability, in this area. See In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998) (per curiam) (refusing to extend the protection of the government attorney-client privilege to communications between the President, the President's personal counsel, and Deputy White House Counsel, and requiring Deputy White House Counsel to testify in front of a grand jury regarding the content of such communications), cert. denied, 526 U.S. 996 (1998); In re Sealed Case, 148 F.3d 1073, 1077 (D.C. Cir. 1998) (per curiam) (dismissing the Clinton Administration's claim of national security concerns as "speculative" and ordering secret service agents to testify about presidential actions over the President's objections), cert. denied, 525 U.S. 990 (1998); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922-24 (8th Cir. 1997) (refusing to extend the attorney-client privilege to communications between White House lawyers, the First Lady, and her private attorney, and allowing the Independent Counsel to inquire into such communications), cert. denied, 521 U.S. 1105 (1997). For a critique of these cases' narrow interpretation of executive privilege, see Akhil Reed Amar, Nixon's Shadow, 83 MINN. L. REV. 1405, 1417-18 (1999).
236. Morrison, 487 U.S. at 672 (emphasis added) (citing 28 U.S.C. § 594(f) (1994)). But cf. id. at 707 (Scalia, J., dissenting) (describing this limitation as "an empty promise").
237. Id. at 672.
238. See 28 U.S.C. § 592(c) (1994).
239. See id. § 592(b)(1), (f).
240. Morrison, 487 U.S. at 672.
241. See 28 U.S.C. §§ 593(c)(2), 594(e). Although the Special Division was not authorized to expand the Independent Counsel's jurisdiction without a request from the Attorney General, the Special Division was authorized to refer "related" cases to the Independent Counsel and could construe the original jurisdictional grant broadly so as to nullify this limitation. See In re Madison Guar. Sav. & Loan Ass'n, 1994 WL 913274 at *1 (D.C. Cir. Aug. 5, 1994) (granting the Independent Counsel's Office jurisdiction and authority to investigate other allegations "related" to the Whitewater matter); In re Sealed Case, 838 F.2d 476, 480 (D.C. Cir. 1988) (describing the Special Division's formal refusal to expand the Independent Counsel's jurisdiction but concurrently finding the requested jurisdiction "implicit" in the original jurisdictional grant), rev'd sub nom. Morrison v. Olson, 487 U.S. 654 (1988); see also In re Espy, 80 F.3d 501, 508-09 (D.C. Cir. 1996) (per curiam) (ordering the referral of matters that arose out of and were connected with the Independent Counsel's original investigation to the Independent Counsel).
242. Morrison, 487 U.S. at 672.
243. Id.
244. Id. (emphasis added).
245. Id. (discussing previous decisions including United States v. Nixon, 418 U.S. 683, 694, 696 (1974) (referring to Watergate Special Prosecutor as a "subordinate officer")); Go-Bart Importing Co. v. United States, 282 U.S. 344, 352-53 (1931) (stating that "United States Commissioners are inferior officers."); and Ex parte Siebold, 100 U.S. 371, 397-99 (1879) (holding that supervisors of elections were inferior officers)).
246. See Morrison, 487 U.S. at 671-73.
247. 28 U.S.C. § 546(c) (1994).
248. See Myers v. United States, 272 U.S. 52, 176 (1926); see also Humphrey's Ex'r v. United States, 295 U.S. 602, 627-28 (1935) (interpreting Myers to stand for the proposition that the President has "illimitable power of removal" over purely executive officers). But see Morrison, 487 U.S. at 695 (stating that Congress may limit removal of executive officers if doing so does not impair the President's ability to accomplish "constitutionally assigned functions"). See generally id. at 724-27 (Scalia, J., dissenting) (analyzing removal discussions in Myers and Humphrey's Executor).
249. See Meyers, 272 U.S. at 119.
250. Morrison, 487 U.S. at 671.
251. Id.
252. See 28 U.S.C. § 541(c) (1994); United States v. Hilario, 218 F.3d 19, 27 (1st Cir. 2000), cert. denied, 121 S. Ct. 572 (2000).
253. See Morrison, 487 U.S. at 663, 671.
254. See 28 U.S.C. § 541(c) (1994); 3 Op. Off. Legal Counsel 448, 448-50 (1979).
255. Morrison, 487 U.S. at 671.
256. According to one observer, "A U.S. Attorney has hundreds of thousands of cases to look at and a need to make cost judgments about what is worth pursuing. . . . The truth is, because of the way the independent counsel statute works, things a U.S. [A]ttorney would never investigate get investigated under this statute because the independent counsel has one [case] and one case only." Joseph diGenova, former U.S. Attorney for the District of Columbia and former special counsel, quoted in Susan Page, Are Independent Counsels Out of Control?, USA TODAY, Nov. 14, 1997, at 2A.
257. Wayte v. United States, 470 U.S. 598, 607 (1985).
258. SEYMOUR, supra note 43, at 237 (recommending imposition of a higher degree of uniformity on the discretionary authority exercised by U.S. Attorneys).
259. See United States v. Mendoza, 464 U.S. 154, 160-61 (1984).
260. Morrison, 487 U.S. at 672.
261. U.S. ATTORNEYS' MANUAL, supra note 6, §§ 4-1.100, 9-2.001.
262. Id. § 9-2.010, 9-2.030.
263. Morrison, 487 U.S. at 662 (citing 28 U.S.C. § 594(a) (1994)).
264. See 28 C.F.R. § 0.20(b) (2000).
265. "Most cases, of course, never reach the Supreme Court. They are finally determined in the district courts, the circuit courts of appeal, and in the custom courts. They must be tried or defended without the spotlight, and yet to all but a few they represent the administration of justice." CUMMINGS & MCFARLAND, supra note 11, at 503.
266. See Morrison, 487 U.S. at 672.
267. 28 U.S.C. § 541(b) (1994).
268. Id. One consequence of this four-year term is that the President may have the authority to replace a U.S. Attorney occupying the office in excess of four years with a recess appointment. This is because offices occupied by "holdovers" (those serving in an office for which their term has expired) are considered to be vacant in the eyes of the law. See Staebler v. Carter, 464 F. Supp. 586, 594 (D.D.C. 1979) (concluding that where an incumbent is serving past the statutorily defined tenure, the office is vacant within the meaning of the Recess Appointments Clause of the Constitution (citing U.S. Const. art. II, § 2, cl. 2)); see also In re Farrow, 3 F. 112, 115-17 (C.C.N.D. Ga. 1880) (recognizing the President's right to make a recess appointment even where the court had named a U.S. Attorney to fill the vacancy because the position remained legally "vacant"). This suggests that when a U.S. Attorney has served more than four years, the Attorney General could remove the incumbent by appointing a U.S. Attorney pursuant to 28 U.S.C. § 546(c). The replacement U.S. Attorney could only serve for 120 days, however, at which time the authority would shift to the district court to appoint a U.S. Attorney pursuant to 28 U.S.C. § 546(d). It would nonetheless allow the Attorney General to remove a U.S. Attorney without presidential action. This hypothetical represents a removal authority in the Attorney General that has not been heretofore exercised.
269. The Independent Counsel Act expired on June 30, 1999. See 28 U.S.C. § 599 (1994).
270. In the case of the Independent Counsel, loss of accountability proved far from being merely an academic concept. The scenario predicted by Justice Scalia played out perfectly in the impeachment of President Clinton. Impeachment - and the process leading up to it - is fraught with political consequences for the members of Congress who are responsible for the administration of impeachment proceedings. The country was intended to endure such a rending process only when political consensus could be developed to proceed. One need look only as far back as Watergate to appreciate that the system can work as planned. Congress undertook to investigate whether President Nixon had betrayed the national trust. Although significant political forces were mustered in opposition, Congress was able to convince the public of the propriety of pursuing its investigation. It was an episode of historic and constitutional significance. If Watergate illustrated what was wrong with American government, it also surely illustrated the enduring wisdom and strength of the Constitution. According to Professor Amar, Prosecutorial self-dealing is not something that the Framers failed to anticipate. And the solution they provided, based on publicity (via grand juries, the press, and legislative oversight) and impeachment (if necessary) still works and works well. . . . This, I suggest, is the lesson that emerges when we compare Watergate - where the Framers' system worked beautifully - with Whitewater, where the flawed statute has not. Amar, supra note 151, at 803 n.216.
271. See Morrison, 487 U.S. at 723, 728 (Scalia, J., dissenting).
272. Id. at 706.
273. Id. at 708.
274. Id. at 716-19.
275. Id. at 722 (referring to debates at the Constitutional Convention indicating the Framers' assumption on this point and citing 2 MAX FARRAND, supra note 28, at 627).
276. 520 U.S. 651 (1997); see, e.g., Amar, supra note 151, at 810 (suggesting that "the Court [has] apparently abandoned Morrison's ad hoc test"); Steven G. Calabresi, The Structural Constitution and the Countermajoritarian Difficulty, 22 HARV. J.L. & PUB. FOL'Y 3, 5 (1998) (reading Edmond as "essentially displac[ing] the faulty Appointments Clause analysis of Morrison v. Olson");
277. Nick Bravin, Note, Is Morrison v. Olson Still Good Law? The Court's New Appointments Clause Jurisprudence, 98 COLUM. L. REV. 1103 (1998). But cf. United States v. Hilario, 218 F.3d 19, 25 (1st Cir. 2000) ("The Edmond Court did not overrule Morrison . . . but cited it as precedent."), cert. denied, 121 S. Ct. 572 (2000).
278. Edmond, 520 U.S. at 660-61.
279. Id. at 661.
280. Ironically, Justice Scalia invokes the Ex parte Siebold precedent that he so convincingly discredited in his Morrison dissent, asserting that the Court had previously "found" an election supervisor to be an inferior officer. Id. But cf. Morrison v. Olson, 487 U.S. 654, 721-22 (1988) (Scalia, J., dissenting) (criticizing the majority's reliance on Ex parte Siebold because the Court had not been presented with the principal versus inferior issue in Siebold but had merely asserted, in dicta, that federal "Judges of Election" were inferior officers). Moreover, the supervisors at issue in Siebold provide an inapt analogy because they were in essence merely poll observers with no prosecutorial authority. See Ex Parte Siebold, 100 U.S. 371, 379-80 (1879) (describing the duties of election supervisors without reference to prosecutorial authority); see also In re Sealed Case, 838 F.2d 476, 485-86 (D.C. Cir. 1988) (characterizing the duties of such commissioners as "relatively modest").
281. Edmond, 520 U.S. at 662-63; cf. Morrison, 487 U.S. at 722 (Scalia, J., dissenting) ("Even an officer who is subordinate to a department head can be a principal officer.").
282. Edmond, 520 U.S. at 664.
283. Id. (citing Bowsher v. Synar, 478 U.S. 714, 727 (1986), and Myers v. United States, 272 U.S. 52, 121-36 (1926)).
284. Id. at 665. This description would not accurately describe the supervision of U.S. Attorneys, who do possess the power to render a final decision for the United States without being "permitted" to do so by some other executive-branch officer. The Edmond court focused on the appellate review to which CGCCA judges are subjected. Id. at 664-65. In this way, the CGCCA is "inferior" in the same way that lower federal courts are inferior to appellate courts. Such an analogy does not characterize the relationship of U.S. Attorneys to Main Justice. Charles Ruff noted that, while the structure of appellate review ensured uniformity within the courts, "We have not developed . . . within that part of the executive branch charged with representing the legal interests of the federal government a comparable mechanism for controlling diversity of judgment." Ruff, supra note 79, at 1205. There are additional, significant distinctions between the nature of appellate review regularly exercised by courts and the Attorney General's supervision of criminal prosecutions. In the federal system, at least one appeal is a matter of right; there is no such guarantee of review with respect to criminal prosecutions initiated by U.S. Attorneys. Moreover, an appellate court can step in to prevent injustice from occurring by staying implementation of a trial court's judgment until an appeal can be decided. Beyond the practical limitations that limit the Attorney General's realistic supervision to only a fraction of high profile or egregious cases, such supervision is generally invoked only after the institution of criminal charges. Yet the initiation of an investigation or the return of an indictment often occasions serious consequences (both in reputation and money). Even if they are later abandoned, criminal investigations and prosecutions can have dire consequences on even the innocent suspect or defendant. The supervision exercised by appellate courts, therefore, is an inapt analogy to the Attorney General's supervision of a U.S. Attorney.
285. Edmond, 520 U.S. at 667 (Souter, J., concurring) (citing Morrison, 487 U.S. at 722 (Scalia, J., dissenting)).
286. Id. at 668. As an element of the balancing test, Justice Souter suggests that it is appropriate to defer "to the political branches' judgment" for the determination of whether a particular officer has principal or inferior status. Weiss v. United States, 510 U.S. 163, 194 (1994) (Souter, J., concurring).
287. Edmond, 520 U.S. at 668.
288. Id. at 663 (majority opinion). Professor Amar endorses this approach, concluding that it is consistent with the usage of "inferior" in other parts of the Constitution. See Amar, supra note 151, at 806-07 ("[W]hen Article III speaks of 'inferior' courts, it likewise means 'inferior to' their superior - the Supreme Court. Symmetrically, when the Article II Appointments Clause speaks of 'inferior' officers, it likewise means 'inferior to' their superior - the relevant unilateral appointing authority.").
289. See 28 U.S.C. § 519 (1994) (stating that the Attorney General "shall direct all United States [A]ttorneys . . . in the discharge of their respective duties").
290. See United States v. Hilario, 218 F.3d 19, 25 (1st Cir. 2000), cert. denied, 121 S. Ct. 572 (2000); United States v. Gantt, 194 F.3d 987, 999 (9th Cir. 1999).
291. Gantt, 194 F.3d at 999 n.6. It should be noted that this represents the converse of the analysis suggested in Justice Souter's concurrence in Edmond. See Edmond, 520 U.S. at 667 (Souter, J., concurring).
292. See Hilario, 218 F.3d at 25.
293. 28 U.S.C. § 519 (1994).
294. See id. § 518(b).
295. Id. § 545(b).
296. Id. § 550.
297. This analysis raises serious questions about the vitality of Morrison and whether the Independent Counsel would still be considered an inferior officer. See supra text accompanying note 251.
298. In determining the status of U.S. Attorneys, courts need not, and should not, be constrained by the formal statutory inferiority of the U.S. Attorneys if, in fact, they exercise the discretion indicative of a principal officer. In defending the Supreme Court's determination that the Comptroller General was subject to the will of Congress, and hence, institutionally unfit to wield the budget-balancing axe of the Gramm-Rudman-Hollings Act, see Bowsher v. Synar, 478 U.S. 714, 727-34 (1986), Professor Strauss suggests that the Court's analysis may have been properly informed by the actual relationship that had developed between the Comptroller and Congress, and eschewed reliance on formal, statutory definitions. See Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions - A Foolish Inconsistency?, 72 CORNELL L. REV. 488, 498-99 (1987) ("The Court might have looked more globally at the relationships between Congress and the General Accounting Office, seeing how the bundle of relationships, formal and informal, creates for the agency a distinctive atmosphere and self-image that does not characterize other agencies.").
299. See Frase, supra note 90, at 250 (arguing that while there is some modicum of supervision, "In most cases . . . the U.S. Attorney has complete control over which charges, if any, will be filed in his district").
300. See Ruff, supra note 79, at 1204 ("In the great majority of cases handled by the United States [A]ttorneys, the Criminal Division is unfamiliar with the development of the investigation, and the prosecutive decision is made before the Division has an opportunity to act." (emphasis added)).
301. See supra note 184 and accompanying text.
302. Ruff, supra note 79, at 1207-08.
303. Bowsher, 478 U.S. at 726 (quoting Synar v. United States, 626 F. Supp. 1374, 1401 (D.D.C. 1986)).
304. See Ruff, supra note 79, at 1205 ("Statutorily, the commands of the Attorney General and his designees bind the United States [A]ttorneys, but the presidential commission provides more than merely symbolic support for the exercise of independent discretion.").
305. Richman, supra note 79, at 787-88; see id. at 810 ("What the evidence strongly suggests . . . is that Congress gives considerable attention to the balance of power between Washington and the [U.S. Attorneys'] districts, and that its failure to impose more approval requirements reflects, not apathy or thrift, but a conscious selection of a particular equilibrium."); see also Ruff, supra note 79, at 1205 (suggesting that "responsiveness to varying local concerns by the criminal justice system is not only acceptable, but desirable").
306. Under our system of government, the primary check against prosecutorial abuse is a political one. See Morrison v. Olson, 487 U.S. 654, 728 (1989) (Scalia, J., dissenting).
307. For a discussion of the aspirations and subsequent political careers of U.S. Attorneys, see EISENSTEIN, supra note 6, at 229-31. See also Dan M. Kahan, Is Chevron Relevant to Federal Criminal Law?, 110 HARV. L. REV. 469, 486 (1996) ("U.S. Attorneys are extraordinarily ambitious and frequently enter electoral politics after leaving office.").
308. See Freytag v. Commissioner, 501 U.S. 868, 883 (1991); In re Sealed Case, 838 F.2d 476, 487 (D.C. Cir. 1988) (describing the Framers' experience with abusive prosecutorial practices that made them "justly fearful of this [prosecutorial] power"), rev'd sub nom. Morrison v. Olson, 487 U.S. 654 (1988).
309. See supra note 148 and accompanying text.
310. United States v. Hilario, 218 F.3d 19, 23 (1st Cir. 2000), cert. denied, 121 S. Ct. 572 (2000).
311. This textual grant of authority to the courts of law distinguishes the appointment power from other contexts where Congress has vested the courts with authority outside the traditional judicial sphere. See Morrison, 487 U.S. at 678-79; Ex Parte Siebold, 100 U.S. 371, 398 (1879). Courts have steadfastly insisted that they may not act outside the context of the "cases or controversies" to which Article III extends "the judicial [p]ower of the United States." See U.S. CONST. art. III, § 1; Buckley v. Valeo, 424 U.S. 1, 123 (1976) (per curiam) ("[E]xecutive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution." (citing United States v. Ferreira, 54 U.S. (13 How.) 40 (1852))). Proposals to vest judges with additional roles were rejected at the Constitutional Convention because the Framers were concerned that too much involvement with the political branches would undermine the independence of the judiciary. See 1 MAX FARRAND, supra note 28, at 430 (comments of Luther Martin) (arguing that the people would lose confidence in the impartiality of judges if judges were vested with extra-judicial authority)). Thus, courts have refused to give advisory opinions. See United States v. Frehauf, 365 U.S. 146, 157 (1961) (listing cases in which the Court refused to issue advisory opinions); Muskrat v. United States, 219 U.S. 346 (1911). Courts have also refused to adjudicate cases where such judgments are subject to another branch's review on the merits. See Hayburn's Case, 2 U.S. (2 Dall.) 409, 411 n.2 (1792) (refusing to adjudicate war pensions claims because the courts' judgments were to be subjected to review by the Department of the Treasury, and as such, "inconsistent with the independence of [the judiciary]"). "But the duty to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts," and thus falls outside the normal prohibition. Siebold, 100 U.S. at 398. Even though the Appointments Clause authorizes such action, courts should be wary of accepting such power from the political branches because it implicates their independence.
312. See U.S. CONST. art. II, § 2, cl. 2; Mistretta v. United States, 488 U.S. 361, 385 (1989) (characterizing judicial appointments of inferior officers as constitutional "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"). One plausible reading of the Excepting Clause would have prohibited all inter-branch appointments, such that "courts of law" would be limited to appointing inferior judicial officers, such as clerks. Commentators have suggested this as a rational limiting principle to the Appointment power, and this approach was alluded to by the Court in early opinions. Although the Supreme Court opined that "[t]he appointing power . . . was no doubt intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged," Ex parte Hennen, 38 U.S. (13 Pet.) 225, 257-58 (1839) (holding that courts could appoint their own clerks), there is "no absolute requirement to this effect." Siebold, 100 U.S. at 397. Professor Amar makes an interesting argument that inter-branch appointments do not comport with a holistic reading of the Constitution. See Amar, supra note 151, at 747 (1999). But cf. Lessig & Sunstein, supra note 27, at 117 n.482 (positing that the limits of acceptable arrangements under the Excepting Clause may constitute a non-justiciable issue because the Clause grants Congress the discretion to structure such appointments "as they think proper" (quoting U.S. CONST. art. II, § 2, cl. 2)). Inter-branch appointments, however, have been validated, see Siebold, 100 U.S. at 397-98, and this Article does not argue that inter-branch appointments are per se unconstitutional. Rather, this Article focuses on the appropriate limits of inter-branch appointments.
313. Morrison, 487 U.S. at 676 (citing Siebold, 100 U.S. at 398); see also Hilario, 218 F.3d at 26-27 ("[T]he 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." (quoting Mistretta, 488 U.S. at 385)).
314. Siebold, 100 U.S. at 398. In concluding that judges could not properly sit on an advisory panel investigating organized crime, the Court of Appeals for the Eleventh Circuit framed the inquiry slightly differently: "[D]oes the imposition of powers traditionally associated with one branch of government on officials of another branch interfere with their ability to perform their constitutionally-required duties in the branch of which they are a part?" In re Application of President's Comm'n on Organized Crime, 763 F.2d 1191, 1196-97 (11th Cir. 1985).
315. 100 U.S. 371 (1879).
316. Id. at 373.
317. Id. at 377-79. Siebold, for example, was convicted of "the offence commonly known as 'stuffing the ballot-box.'" Id. at 379.
318. Id. at 397.
319. Id. at 397-98 (stating that "the duty to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts").
320. Id. at 398.
321. Id.
322. See Note, The Proposed Court-Appointed Special Prosecutor: In Quest of a Constitutional Justification, 87 YALE L.J. 1692, 1697-98 n.27 (1978) (citing Dean Roger Cramton's opinion that "Siebold was merely an affirmation of congressional power to enact legislation pursuant to its duty to investigate the qualifications of its own members and did not involve criminal law enforcement"). One distinguished jurist has lamented that the courts should not presume the validity of all congressionally approved inter-branch appointments on the basis of such "conflicting and ambiguous language in 19th century cases." Hobson v. Hansen, 265 F.Supp. 902, 921 (D.D.C. 1967) (Skelly Wright, J., dissenting).
323. Siebold, 100 U.S. at 382.
324. Id. at 393.
325. See Offutt v. United States, 348 U.S. 11, 14 (1954) ("[J]ustice must satisfy the appearance of justice.").
326. Krent, supra note 124, at 1302 n. 204.
327. In re Application of President's Comm'n on Organized Crime, 763 F.2d 1191, 1197 (11th Cir. 1985) (citing United States v. Will, 449 U.S. 200 (1980)); see also Irving R. Kaufman, The Essence of Judicial Independence, 80 COLUM. L. REV. 671 (1980) (discussing the development of an independent judiciary in the United States and its importance in the constitutional framework).
328. Application of President's Comm'n on Organized Crime, 763 F.2d at 1197. Although the quoted passage criticizes judges' participation in a presidential advisory commission, the reasoning applies a fortiori to the appointment of the chief prosecutor in the judges' own district.
329. See In re Charge of Judicial Misconduct or Disability, 39 F.3d 374, 380-82 (D.C. Cir. 1994) (Judicial Council of the D.C. Circuit) (upholding the propriety of judges consulting with political leaders and others in considering who to appoint as independent counsel); id. at 380 ("It is hard to imagine how anyone would go about [the task of selecting an Independent Counsel] without seeking advice [from outside sources].").
330. MODEL CODE OF JUDICIAL CONDUCT Canon 3C(4) (1998). The statutory authority to appoint U.S. Attorneys arguably makes such appointments "necessary," see Ex Parte Siebold, 100 U.S. 371, 398 (1879), even though the grant of authority is permissive. However, this specific reference in Canon 3 of the Code of Judicial Conduct, which deals with the preservation of judicial impartiality, reveals the seriousness of the concerns that arise when judges appoint prosecutors.
331. See Howard Schneider, Judge Met Senator Faircloth Before Fiske Was Ousted, WASH. POST, Aug. 12, 1994, at A1 (reporting on a lunch meeting between Judge David Sentelle, the only judge from the D.C. Circuit - and the presiding judge - on the Special Division, and two Republican Senators);
332. see also Charge of Judicial Misconduct or Disability, 39 F.3d at 377 (describing the facts surrounding charges against Judge Sentelle for judicial misconduct).
333. See, e.g., Susan Schmidt, Former ABA Presidents Criticize Panel That Chose Starr, WASH. POST, Sept. 27, 1994, at A9 (reporting on a statement issued by the former ABA presidents urging the special division to not only be objective, but to maintain an appearance of objectivity).
334. See HISTORICAL ENCYCLOPEDIA OF U.S. INDEPENDENT COUNSEL INVESTIGATIONS 305-07 (Gerald S. Greenberg ed., 2000) (noting criticism of Judge Sentelle's role in appointing Whitewater Independent Counsel and concluding that "[p]ublic confidence . . . suffers whenever the integrity of the judicial appointment process appears compromised");
335. CHARLES A. JOHNSON & DANETTE BRICKMAN, INDEPENDENT COUNSEL: THE LAW AND THE INVESTIGATIONS 226-27 (2001) (discussing the persistent criticism of the Independent-Counsel-appointment process during the Whitewater investigation).
336. As Justice Scalia noted in dissent in Morrison v. Olson, judges are human and can be influenced by politics. 487 U.S. 654, 730 (1989) (Scalia, J., dissenting) (noting that the panel of judges who select an Independent Counsel may be influenced by their own political views and that there would be no remedy to cure any negative consequences).
337. The impropriety of this contact is compounded by the fact that the Department of Justice administers the process for selecting presidential nominees to the Courts of Appeal, who are often times chosen from the ranks of sitting district court judges.
338. Constance O'Keefe & Peter Safirstein, Note, Fallen Angels, Separation of Powers, and the Saturday Night Massacre: An Examination of the Practical, Constitutional, and Political Tensions in the Special Prosecutor Provisions of the Ethics in Government Act, 49 BROOK. L. REV. 113, 133 (1982). Although O'Keefe and Safirstein recognize that "the United States [A]ttorney is certainly a policy-maker and the nature of his duties require him to answer to the President," they credited the reasoning of the district court in Solomon for upholding the court appointment of U.S. Attorneys: "[T]he exercise of the appointive power . . . in no wise [binds] the executive . . . . [T]he executive branch is free to choose another United States Attorney at any time." Id. at 134 (quoting United States v. Solomon, 216 F. Supp. 835, 838-43 (S.D.N.Y. 1963) (upholding the validity of 28 U.S.C. § 506, the precursor to 28 U.S.C. § 546)). The authors conclude that "[a]bsent a provision for such a choice by the President, the judicial appointment of a United States [A]ttorney would clearly be incongruous with separation of powers considerations." Id. Of course, the executive is not free to choose another U.S. Attorney. The provisions of 28 U.S.C. § 541 require the President to submit his nominee for that office to the Senate for approval; only then can a presidentially appointed U.S. Attorney replace the one appointed by the court. See 28 U.S.C. § 541 (1994). But cf. In re Farrow, 3 F. 112, 115 (C.C.N.D. Ga. 1880) (holding that a prosecutorial office filled by a court appointee is "vacant," thereby granting the President the power to replace the court appointee by means of a recess appointment). So even though the President can remove a district court-appointed U.S. Attorney, the President cannot replace a U.S. Attorney without the Senate's concurrence. Moreover, the President is required to expend political capital to remove a district court's appointee.
339. Morrison, 487 U.S. at 676-77.
340. Id. at 676.
341. Id. (citing Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931)). The role of the United States commissioners, featured so prominently in this discussion, is very ambiguous. In another part of the Morrison opinion, they are characterized as "court officials." Id. at 679 n.16.
342. See id. at 679 n.16.
343. Id. at 676 n.13.
344. Id. at 676 (citing United States v. Solomon, 216 F. Supp. 835 (S.D.N.Y. 1963)).
345. Morrison, 487 U.S. at 677. The Judicial Council of the D.C. Circuit cited this structural protection in validating the propriety of judges seeking the advice of political leaders and others in choosing an independent counsel. See In re Charge of Judicial Misconduct or Disability, 39 F.3d 374, 380 (D.C. Cir. 1994) (discussing the statute prohibiting judges from presiding in cases argued by their appointees); see also In re President's Comm'n on Organized Crime, 783 F.2d 370, 381 (3d Cir. 1986) (upholding judges' participation in presidential commission because they could recuse themselves from related cases). But cf. In re Application of President's Comm'n on Organized Crime, 763 F.2d 1191, 1196-98 (11th Cir. 1985) (finding a judge's participation, even as an individual as opposed to qua judicial officer, inconsistent with appropriate judicial activity); Ronald L. Krotoszynski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 WM. & MARY L. REV. 417, 472-75 (1997) (arguing that Morrison v. Olson was wrongly decided because the court appointment of independent counsels undermines judicial independence and neutrality).
346. Hobson v. Hansen, 265 F. Supp. 902, 923 (D.D.C. 1967) (Skelly Wright, J., dissenting). But cf. id. at 911 (majority opinion) (arguing that the Appointments Clause represents "a deliberate decision by the Framers to enable Congress in its wisdom to authorize 'the Courts of Law' to share with the executive the appointing power of federal officers").
347. According to Professor Amar, Federal judges are given life tenure to remove them from daily politics, but the Independent Counsel statute risks politicizing the judiciary . . . . Judges will not be good at picking prosecutors because they have inadequate information and weak incentives. Whereas the Attorney General has a wealth of information about the track record of prosecutors, judges do not and should not have access to this treasure trove of intra-executive intelligence, implicating various out-of-court activities that lie beyond the proper province of judicial supervision. Amar, supra note 151, at 809.
348. United States v. Hilario, 218 F.3d 19, 28 (1st Cir. 2000), cert. denied, 121 S. Ct. 572 (2000).
349. Morrison, 487 U.S. at 730 (Scalia, J., dissenting); see also Amar, supra note 151, at 809 ("[W]hen an appointing authority is picking its own assistant, it obviously has strong incentives to pick well. If the subordinate does a bad job, other government officials and ordinary citizens will and should blame the boss.").
350. Some might argue that this natural sympathy would make the appointing judges even more critical of the U.S. Attorney's performance. This, too, undermines the propriety of having the judges make such an appointment. Judges should scrutinize the actions of the U.S. Attorney as the representative of a coordinate branch of government, not more and not less.
351. See In re Charge of Judicial Misconduct or Disability, 39 F.3d 374, 382 (D.C. Cir. 1994) (stating that the "entire purpose" of the Independent Counsel Act was to provide "independence from the Executive Branch").
352. Hilario, 218 F.3d at 28-29.
353. See WILLIAM M. BEANEY, THE RIGHT TO COUNSEL IN AMERICAN COURTS 21-33 (1955) (describing the development of constitutional jurisprudence on the right to counsel).
354. See Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963).
355. See United States v. Nixon, 418 U.S. 683, 693 (1974) ("[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case . . . ."); see also WAYNE R. LAFAVE ET AL., 4 CRIMINAL PROCEDURE § 13.2(a) (2d ed. 1999) (discussing the prosecutor's discretion in deciding whether to prosecute); O'Keefe & Safirstein, supra note 312, at 132 n.83 (listing cases describing prosecutorial responsibilities as an executive function).
356. The Hilario opinion attempts to bolster its argument that the court appointment of prosecutors "is in keeping with preserving the institutional integrity of the judiciary" by citing to Young v. United States ex rel. Vuitton et Fils S.A. See Hilario, 218 F.3d at 29 (citing 481 U.S. 787, 800-01 (1987)). Young, however, cannot support the Court of Appeals for the First Circuit's judicial-integrity argument. In Young, the Supreme Court criticized the district court for appointing private counsel (with an interest in the outcome) to prosecute a contempt-of-court charge. Young, 481 U.S. at 802. The Supreme Court did recognize an inherent authority in the judiciary to convene contempt-of-court proceedings to ensure that its orders are respected and the integrity of the courts maintained. Id. at 800-01. But the Court held that courts must request the executive branch to prosecute the contempt charge(s) in the first instance; only when and if the executive branch refuses to prosecute the contempt charge(s) can the court appoint a prosecutor pursuant to the court's inherent authority to vindicate its own orders. Id. at 800-02. Such inherent authority is inapposite in the context of criminal prosecutions. Courts have no inherent authority or any legitimate interest in the institution of criminal proceedings outside the limited circumstance of criminal contempt for lack of compliance with a court's own orders.
357. See Powell v. Alabama, 287 U.S. 45, 68-71 (1932) (recognizing that the right to effective assistance of counsel is fundamental to due process).
358. See Evitts v. Lucey, 469 U.S. 387, 394 (1985) (recognizing the "obvious truth that lawyers are 'necessities, not luxuries' in our adversarial system of criminal justice" (quoting Gideon, 372 U.S. at 344)).
359. See CUMMINGS & MCFARLAND, supra note 11, at 511 ("The administration and enforcement of the laws . . . begin not in the courts but in the offices and agencies of government to which necessarily there has been committed the authority to enforce many statutes. This, indeed, is the gist of the executive function.").
360. See In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring) (articulating the "fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free").
361. EXECUTIVE OFFICE FOR U.S. ATTORNEYS, U.S. DEP'T OF JUSTICE, supra note 13, at 16, 75 (discussing the total number of pending civil and criminal cases at the end of fiscal year 1999); see also id. at 130-32 (presenting a table of the total pending cases).
362. See United States v. Hilario, 218 F.3d 19, 29 (1st Cir. 2000) ("[J]udges' appointment of an interim United States Attorney assists the functioning of the court: at bottom, it assures the skillful processing of cases in which the United States is a party."), cert. denied, 121 S. Ct. 572 (2000). The Hilario analysis proves too much when it represents that federal prosecutorial authority is unacceptably compromised when the office of U.S. Attorney is vacant; such an argument undermines its conclusion that U.S. Attorneys are inferior officers. If a U.S. Attorney is so crucial to the functioning of the executive branch in its enforcement of the laws, surely U.S. Attorneys are principal officers whom the President must select.
363. Generally speaking, there are two schools of jurisprudential thought on how to approach separation-of-powers issues. The formal approach "stress[es] that the three branches of government should be kept as distinct as possible," while the functionalist approach "generally ask[s] whether the exercise of the contested function by one branch impermissibly intrudes into the core function or domain of [another] branch." Krent, supra note 124, at 1254-55; see also Todd D. Peterson, Prosecuting Executive Branch Officials for Contempt of Congress, 66 N.Y.U. L. REV. 563, 583-85 (1991) (comparing formalist versus functionalist approaches); Strauss, supra note 274, at 488 (contrasting the Supreme Court's formalist approach in Bowsher v. Synar with its functionalist analysis in Commodity Future Trading Comm'n v. Schor). There is an argument that a more formal analysis is appropriate when the judicial branch is assigned responsibilities traditionally assigned to the executive or legislative branch, in order to protect the judiciary from being forced to make unnecessary political decisions. See Krotoszynski, supra note 319, at 478.
364. The incongruity analysis and the more general separation-of-powers analysis are related, yet distinct. The incongruity analysis is introspective, in that it is specifically concerned with whether the appointing authority in question undermines the court's own ability to function properly. The more general separation-of-powers analysis focuses on whether the court's exercise of the appointing authority either inappropriately aggrandizes the power of one branch or interferes with the proper functioning of another branch.
365. Responding to concerns that the Constitution did not contain an explicit recognition of the separation of powers, James Madison proposed to add an article to do just that. Madison proposed to add a new Article VII, which would have read as follows: The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial; nor the executive exercise the powers vested in the legislative or judicial; nor the judicial exercise the powers vested in the legislative or executive departments. 12 THE PAPERS OF JAMES MADISON 202 (Charles F. Hobson & Robert A. Rutland eds., 1979). Another proposal would have placed a separation-of-powers amendment in the Bill of Rights. Casper, supra note 27, at 221-22. Ultimately, neither proposal was adopted. Id.
366. United States v. United States Dist. Court, 407 U.S. 297, 317 (1972). The structure of the Appointments Clause - dividing responsibility for appointments between the executive and the legislature - can be seen as a structural blending of the separation of powers. Nonetheless, in order to maintain the accountability guaranteed by the system, the separation of powers must be respected and each of the branches must be limited to exercising the authority granted by the Constitution and not more.
367. See, e.g., U.S. CONST. art. I, § 7, cl. 2 (granting the President a veto over legislative enactments). The Constitution "does not place comparable internal checks upon the executive branch." Krent, supra note 124, at 1293. Professor Krent argues that this lack of restrictions on the executive branch was based upon the belief that the branch was sufficiently constrained by congressional directive, and that "the need for dispatch in enforcing the laws militated against any cumbersome requirements delaying executive action." Id. The Appointments Clause, however, represents a structural blending of powers - granting Congress the authority to structure the appointments process for inferior officials and giving Congress a veto over the President's nominees for principal offices - aimed at instilling inter-branch cooperation and accountability, and ultimately, better government. See id. at 1269 (discussing the role of the Appointments Clause in "foster[ing] accountability").
368. The goal was to "contriv[e] the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places." THE FEDERALIST NO. 51, at 320 (James Madison) (Clinton Rossiter ed., 1961).
369. This country rejected the judicial recognition of common law crimes. Only Congress can enact criminal laws. United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812).
370. Cmty. for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986); see also United States v. Armstrong, 517 U.S. 456, 464 (1996) (stating that the Attorney General and the U.S. Attorneys may decide how to enforce federal laws "because they are designated by statute as the President's delegates to help him discharge his constitutional responsibility to 'take Care that the Laws be faithfully executed.'" (quoting U.S. CONST. art. II, § 3)).
371. See Amar, supra note 151, at 809 ("Judges should never be in the business of picking prosecutors - this blurring of adjudicatory and prosecutorial roles ill fits the general liberty-enhancing architecture of separation of powers.").
372. U.S. CONST. art. I, § 9, cl. 3 ("No Bill of Attainder . . . shall be passed [by Congress].").
373. THE FEDERALIST No. 47, at 301 (James Madison) (Clinton Rossiter ed., 1961).
374. Mistretta v. United States, 488 U.S. 361, 381-82 (1989) (quoting Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam)).
375. Buckley, 424 U.S. at 129. See THE FEDERALIST No. 48, at 309 (James Madison) (Clinton Rossiter ed., 1961) ("The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.").
376. Lessig & Sunstein, supra note 27, at 117.
377. Krent, supra note 124, at 1288. There may be two distinct separation-of-powers inquiries: (1) whether the challenged policy expands (or aggrandizes) one branch's power beyond its constitutional confines; and (2) whether the challenged practice unduly interferes with or undermines another branch's constitutionally vested authority. Although these may be two sides of the same coin, they may also represent a more nuanced way of approaching separation-of-powers controversies. See Strauss, supra note 274, at 517 (suggesting "an approach that would tend to treat a constitutional actor's 'aggrandizement' of its own function and its 'undermining' or restriction of another's function as separable issues.").
378. Congress sought to limit the executive branch's unilateral ability to fill vacancies in offices of the government through the Vacancies Act. 5 U.S.C. §§ 3345-3349 (1994) (current version at 5 U.S.C. 3345-3349 (2000)) (limiting appointment of acting officials in several ways including, in most circumstances, limiting the tenure of acting officials to 120 days). The Justice Department has historically declared itself unaffected by the Vacancies Act. See Oversight of the Implementation of the Vacancies Act, Hearing on S. 1764 Before the Senate Comm. on Governmental Affairs, 105th Cong. 138-49 (1998) (statement of Joseph Onek, Principal Deputy Associate Attorney General, Department of Justice) (maintaining that the Vacancies Act does not constrain acting appointees of the Attorney General); 6 Op. Off. Legal Counsel 119, 120-21 (1982). The Department of Justice has argued that the basis for compliance with the Vacancies Act, indeed, compliance with the procedure established by the Appointments Clause generally, is "more practical and political than legal." See id. at 121. Congress sought to change this with the passage of the Vacancies Reform Act of 1998 which extended the period that acting officers could serve from 120 to 210 days but unambiguously sought to cover vacancies in the Department of Justice. See 5 U.S.C. §§ 3345-3349 (2000). The Vacancies Act raises interesting questions of separation of powers, but because of the explicit statutory scheme for filling U.S. Attorney vacancies, Vacancy Act issues are beyond the scope of this Article. See id. § 3347 (2000) (excepting from the Vacancies Act those appointments made pursuant to an explicit statutory provision authorizing other means of appointment).
379. In order for this process to function properly, there has to be political pressure to reach consensus. Professor Gerhardt has opined that consensus in the appointments context is only likely where (1) both the Senate and the President believe that each will be held politically accountable for frustrating or slowing down the process; and (2) the Senate deliberates carefully before obstructing the President's choices because of "the high odds of failure and the high costs both to the institution and to individual Senators." Gerhardt, supra note 108, at 482. According to Professor Gerhardt, due to the structure of the Appointments Clause, [I]t is difficult, if not impossible, for [Senators] to oppose all presidential nominations and still expect to keep the federal government operating effectively or to maintain credibility in claiming a purely nonpartisan motivations [sic] for their actions. Consequently, Senators are forced to pick and choose their confirmation fights with the President carefully. Gerhardt, supra note 113, at 1366. Although this analysis is most applicable to the Washington-based officers over whose nomination the Senate has less influence, it nonetheless informs an appreciation of the structural and institutional dynamics inherent in appointment practices.
380. THE FEDERALIST No. 77, at 461 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
381. United States v. Hilario, 218 F.3d 19, 29 (1st Cir. 2000), cert. denied, 121 S. Ct. 572 (2000).
382. Professor Richman has offered a similar argument to explain why Congress has not consolidated authority in Main Justice but has left the U.S. Attorneys' offices with a great deal of power and discretion: "In a period of divided government, a Congress controlled by one party might well prefer in the short term that power not be centralized in an executive controlled by the other party." Richman, supra note 79, at 806.
383. See Morrison v. Olson, 487 U.S. 654, 677 (1988).
384. Although Professors Lessig and Sunstein argue that "some degree of independence is constitutionally acceptable" when dealing with the prosecution of high-level presidential appointees, they concede that "[o]ther efforts to insulate prosecution would be more difficult, because the prosecutorial power is now intermingled with substantive policymaking." Lessig & Sunstein, supra note 27, at 110.
385. See, e.g., Rickhoff, supra note 163, at 500 (lamenting that the Western District of Texas "languished without a presidentially-appointed" U.S. Attorney for more than five years "due simply to political inertia").
386. The Solicitor General has been imbued with a tradition of independence from executive-branch loyalty that is in some ways greater than that of the U.S. Attorneys. See Edmond v. United States, 520 U.S. 651, 668 (1997) (Souter, J., concurring) (discussing the historical independence of the Solicitor General and suggesting that, at least under Morrison, "the Solicitor General of the United States . . . may well be a principal officer, despite his statutory 'inferiority" to the Attorney General"). Yet it would be unacceptable for courts to appoint an acting Solicitor General in the event of a vacancy, even if the President could remove the appointee at will, because the President must be able to choose the government's representative to the Supreme Court (and as a corollary, because the Supreme Court should not choose the government's Supreme Court advocate). The same holds true for U.S. Attorneys.
387. A determination that the court appointment of U.S. Attorneys is unconstitutional would not necessarily undermine any of the actions taken (or convictions secured) by court-appointed U.S. Attorneys: "The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person's appointment or election to office is deficient." Ryder v. United States, 515 U.S. 177, 180 (1995) (citing Norton v. Shelby County, 118 U.S. 425, 440 (1886)); see also McDowell v. United States, 159 U.S. 596, 602 (1895) ("[W]here there is an office to be filled and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto and binding upon the public."). Courts, however, have become skeptical of invoking the de facto officer doctrine. For example, the Court of Appeals for the Ninth Circuit, "[f]ollowing the modern trend," refused to invoke the "ancient 'de facto officer' doctrine" to validate the acts of the court-appointed U.S. Attorney. United States v. Gantt, 194 F.3d 987, 998-99 (9th Cir. 1999) (reaching the merits and deciding that the court-appointment process "passes constitutional muster"). Even in the absence of the de facto officer doctrine, however, almost every action approved by a U.S. Attorney is carried out by a career Assistant U.S. Attorney, whose commission is not called into question by this analysis. See id. ("An infirmity in the United States Attorney's appointment would not generally affect the jurisdiction of th[e] court so long as a proper representative of the government participated in the action."); see also United States v. Hilario, 218 F.3d 19, 22 (1st Cir. 2000) (noting that "[b]ecause they are appointed directly by the Attorney General, [Assistant U.S. Attorneys'] ability to act does not hinge on the authority of the local United States Attorney" (citation omitted)), cert. denied, 121 S. Ct. 572 (2000).