Power to Remove Court-Appointed U.S. Attorneys ( 1979 )

November 26, 1979
79-83 MEMORANDUM OPINION FOR THE ACTING
DIRECTOR, EXECUTIVE OFFICE FOR U.S.
ATTORNEYS
U.S. Attorneys—Removal of Court-Appointed
U.S. Attorney (28 U.S.C . §§ 541, 546)
This responds to your request concerning whether the power to remove
a U.S. Attorney appointed by a district court pursuant to 28 U.S.C. § 546is vested in the President, the Attorney General, or the appointing court.1
To our knowledge, the question is one of first impression.
Pursuant to 28 U.S.C. § 541(a), the President appoints U.S. Attorneys
by and with the advice and consent of the Senate. Subsection (c) of that
section provides that “ [e]ach United States Attorney is subject to removal
by the President.” The question is whether the President’s removal power
under subsection (c) extends to U.S. Attorneys appointed by the court pur­
suant to § 546, or whether they can be removed only by the court that ap­
pointed them. In our view the first interpretation is the correct one.
Normally, as a rule of construction, the power to appoint carries with it
the power to remove. See, Myers v. United States, 272 U.S. 52, 119 (1926),
and the authorities there cited. Myers, indeed, stands for the proposition
that this rule is of a constitutional nature in the case of executive officers
appointed by the President by and with the advice and consent of the
Senate. On the other hand, where Congress exercises its authority under
Article II, section 2, clause 2, of the Constitution by vesting the power of
appointing inferior officers in the President alone, the heads of depart­
ments, or the courts, it can also regulate the manner for the removal of
those officers appointed by department heads and the courts.2 See, United
'T he section reads as follows:
T he district court for a district in which the office o f United States A ttorney is vacant
may appoint a U nited States A ttorney to serve until the vacancy is filled. The order of
appointm ent by the court shall be filed with the clerk o f the court.
'T here is no occasion here to discuss the question whether Congress can limit the power of
the President to remove inferior officers where Congress has vested the appointm ent power
in the President alone. See, Myers v. United States, 272 U .S. at 158-161.
448
States v. Perkins, 116 U.S. 483, 485 (1886); Myers v. United States, 272
U.S. at 160-163; Carter v. Forrestal, 175 F.(2d) 364, 366 (D.C. Cir. 1949).
In § 546, Congress has vested in the district courts the power to make in­
terim appointments of U.S. Attorneys who, under Myers, are character­
ized as inferior executive officers. 272 U.S. at 159. Hence the power to
remove court-appointed U.S. Attorneys would rest with the appointing
court, unless Congress has exercised its authority to regulate their
removal.
We believe that Congress has done so in § 541(c), which, as stated above
provides that “ [e]ach United States Attorney is subject to removal by the
President.” [Emphasis added.] In United States v. Solomon, 216 F. Supp.
835 (S.D.N.Y. 1963), the defendant contended that because 28 U.S.C.
§ 506 (the predecessor of § 546) vested the appointive power in the court, it
also possessed the power of removal and that this combination provided
“ a nexus too close to comport with due process.” The court rejected this
contention, stating (p. 843):
[T]he contention rests on an unfounded premise. While the nor­
mal appointive power carries with it the power of removal * * *
the power in this instance is in no wise equivalent * * * Presi­
dent may, at any time, remove the judicially appointed United
States Attorney pursuant to 28 U.S.C. § 504 [now § 541]. The
language o f subsection (b), [e]ach United States Attorney shall
be subject to removal by the President * * * clearly authorizes
the executive to remove any United States Attorney, regardless
of the nature of his appointment. The statutory scheme for the
temporary appointment by the judiciary of the United States At­
torney comports in all respects with due process of law.
Although the case did not involve an executive attempt to remove an in­
terim U.S. Attorney, it is, as far as we are aware, the only judicial state­
ment directly in point. We believe it to be correct, as we discuss below.
Section 541(c) is part of 28 U.S.C. § 541, the first subsection of which
provides for the appointment of U.S. Attorneys by the President by and
with the advice and consent of the Senate. Subsection (c), however, should
not be read as being limited to the U.S. Attorneys appointed by the Presi­
dent pursuant to subsection (a). To begin with the word “ each” would be
unnecessary if subsection (c) were confined only to those U.S. Attorneys.
Moreover, the subsection would be surplusage because it has been firmly
established, since Parsons v. United States, 167 U.S. 324 (1897), that the
President has the power to remove U.S. Attorney appointed by him with
the advice and consent of the Senate. Section 541(c), therefore, makes
sense only if its application is not limited to Presidentially appointed U.S.
Attorneys, whom the President can remove even without statutory
authorization, but also is to be read as extending to “ each” U.S. At­
torney, including the court-appointed ones whom the President could not
remove without congressional leave.
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There are two considerations that presumably prompted Congress to
give the President the power to remove court-appointed prosecutors. First,
the duties of the U.S. Attorneys are of an executive nature. Although the
legislative history is not illuminating, see 37 Cong. Globe 1028 (1863),
passim, Congress may have felt at the time when the initial predecessor of
§ 546 was enacted in 1863 that the expeditious filling of the office of a U.S.
Attorney in case of a vacancy could be best accomplished by the local
court. But it is also true that the President is responsible for the conduct of
a U.S. Attorney’s Office and therefore must have the power to remove one
he believes is an unsuitable incumbent, regardless of who appointed him.
Indeed, Myers v. United States points out (at 119-122) that the power of
removal may be even more important to the President than the power of
appointment. Indeed, it is the power to remove, and not the power to ap­
point, which gives rise to the power to control. Second, as suggested in
United States v. Solomon, due process problems could arise if a court
through the exercise of its removal power were enabled to control the man­
ner in which a prosecutor performs his official duties. We therefore are of
the opinion that the power to remove a court-appointed U.S. Attorney
rests with the President.
Your inquiry also asks whether the Attorney General has that power.
We answer this questions in the negative in view of our interpretation of
§ 541(c) as constituting—at least in part—the specific exercise of
legislative power under Article II, section 2, clause 2, vesting in the Presi­
dent the power o f removing a court-appointed U.S. Attorney.
Whether the President should exercise the power of removal is, of
course, a question of policy.3 We note in this connection that Carey v.
United States, 132 Ct. Cl. 397 (1955), stands for the proposition that the
President need not actually sign removal papers, but that he may leave to
the Attorney General the implementation of an oral Presidential decision
to remove a U.S. Attorney appointed with the advice and consent of the
Senate; indeed, that the President may authorize the Attorney General to
do what he feels is warranted and then orally approve the action taken by
the Attorney General. Carey at 401-403.4 But we do not recommend this
course of action in the situation at hand, since the incumbent U.S. At­
torney apparently has the backing of the district court. That court might
react unfavorably to any action that does not carefully comport with the
letter of the statute.
John M . H armon
Assistant A ttorney General
Office o f Legal Counsel
‘We note that in your view this m atter has a serious potential effect upon the A ttorney
General’s ability to manage the D epartm ent’s business.
4See also, Newman v. United States, 382 F. (2d) 979, 982 (D .C . Cir. 1967), suggesting that
the President can delegate certain o f his supervisory and disciplinary powers—including the
power o f summary dismissal—to deal with m isconduct o f his subordinates.
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