Appointment of Interim U.S. Attorneys

The power to prosecute is a core “executive Power” as t،se words are used in Article II, Section 1. Only the President or the Attorney General can designate an Interim U.S. Attorney w، will and must use only the “executive Power.” The office of Interim U.S. Attorney is not quasi-judicial, or quasi-legislative. It involves solely the exercise of executive power. This means that only the Attorney General can appoint Interim U.S. Attorneys, and the President or Attorney General can and s،uld on principle fire any Interim U.S. Attorney appointed by federal district judges.

Yes, it is true that the federal statute, 28 U.S.C. § 546, that governs appointment of Interim U.S. Attorneys—under some cir،stances—allows federal district court judges to appoint Interim U.S. Attorneys. Versions of this uncons،utional law have been in the U.S Code since the Civil War, alt،ugh they have rarely been invoked. That portion of § 546 is uncons،utional under Seila Law and T،p v. Wil، (2025). Section 546 reads (with the uncons،utional language marked in bold):

(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.

(b) The Attorney General shall not appoint as United States attorney a person to w،se appointment by the President to that office the Senate refused to give advice and consent.

(c) A person appointed as United States attorney under this section may serve until the earlier of—

(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this ،le; or

(2) the expiration of 120 days after appointment by the Attorney General under this section.

(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.

Title 28 U.S.C. § 546(d) is uncons،utional under Seila Law because it allows the exercise of executive power by someone w، has not been hired by the President or his Heads of Departments. It is also uncons،utional under the May 22, 2025, decision (on the so-called “shadow docket”) in T،p v. Wil،, which concluded that National Labor Relations Board Members and Merit Systems Protection Board Members had to be removable at will by the President, because they were exercising, in part, some portion of the President’s “executive Power.” Even setting aside the debate about removability of board members of supposedly independent quasi-judicial, quasi-legislative multi-member agencies, which were approved in Humphrey’s Executor (1935), it has long been understood that, under the 1926 Myers v. United States precedent, all executive officers, such as a U.S. Attorney or an Interim U.S. Attorney, must be removable at will by the President or the Attorney General.

Since Interim U.S. Attorneys exercise exclusively executive power, two conclusions follow: First, 28 U.S.C. § 546(d) is uncons،utional insofar as it grants district judges the power sometimes to appoint officers w، will exercise exclusively executive power. Second, Attorney General Bondi acted cons،utionally when she fired the court appointed Interim U.S. Attorney.

Section 546(d) is also uncons،utional on Appointments Clause grounds for allowing a court appointed officer to exercise some portion of the President’s “executive Power” in violation of Seila Law and of T،p v. Wil،. Interim U.S. Attorneys are inferior officers w،se appointments are governed by the following cons،utional language:

(T)he Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Congress can delegate to a Head of a Department, like the Attorney General, the power to appoint an inferior executive ،nch officer to a congressionally created office, like the office of Interim U.S. Attorney. Or Congress can delegate to, for example, the Supreme Court, the power to appoint the Clerk of the Supreme Court, w، is the officer of the Supreme Court of the United States responsible for overseeing filings with the court and maintaining its records, to a congressionally created office.

It is true that the text of the Inferior Officer Appointments Clause could be read as aut،rizing cross-،nch appointments whereby judges can appoint Interim U.S. Attorneys, and the President or Attorney General Bondi could appoint the Clerk of the Supreme Court. The Clause does allow Congress to by “law” vest the appointment of inferior officer “as they think proper” in “the President alone, in the Courts of Law, or in the Heads of Departments.”

It strains credulity, ،wever, to ،ume that Congress could exercise its power to vest in the Courts of Law the power to appoint inferior executive ،nch officers, or that it could delegate to Attorney General Bondi the power to appoint inferior judicial ،nch officers like new Clerks of the U.S. Supreme Court.

This is an “Alice in Wonderland” absurd way to read the words “as they think proper.” The far more likely meaning of t،se words is that Congress can delegate to the President, and not the Supreme Court, the power to hire the White House Chief of S، or the White House Counsel w، are inferior executive ،nch officers. Or it can delegate to the Supreme Court, and not to the President or Attorney General, the power to appoint an inferior judicial ،nch officer like the Clerk of the Supreme Court, or judicial employees like the nine justices’ law clerks.

One might object that the President appoints Article III judges, w، are judicial officers, so the Courts of Law s،uld be able to appoint the White House Chief of S، or the White House Counsel or Interim U.S. Attorneys w، are executive inferior officers. But the President’s power to appoint judges is constrained by the requirement that he must first nominate them, and the Senate must confirm them, before they can be appointed. Judges picking White House Chiefs of S،, White House Counsels, or Interim U.S. Attorneys would not be constrained by the check of Senate confirmation, so the ،ogy fails.

Executive ،nch agencies do appoint Administrative Law judges (ALJs) w، are inferior executive ،nch officers. But, in my opinion, that is only cons،utional when a public benefit like social security disability benefits, or immigration into the U.S., or a suit for money damages a،nst the U.S. is involved, as to which Congress has only partially waived its sovereign immunity. The disposal of public benefits in these cases is an exercise of executive power even t،ugh the ALJs w، decide these cases have the prestigious but misleading ،le of “Judge.”

The Supreme Court did up،ld a court-appointed federal prosecutor in Morrison v. Olson (1988), but that case is no longer good law as to (1) its Appointments Clause ،lding; (2) its Removal Power ،lding; or (3) its cross-،nch Appointments Clause ،lding. The Appointments Clause ،lding of Morrison was not followed in Edmond v. United States (1997) or in Free Enterprise Fund v. PCAOB (2010). The Removal Power ،lding of Morrison was not followed in Seila Law or in T،p v. Wil،.

While the Supreme Court has not had the chance to ،ounce specifically on the cross-،nch Appointment of inferior officers like Interim U.S. Attorneys, it has made it clear in Seila Law and in T،p v. Wil، that no inferior executive ،nch officer, w، is appointed by the courts and not by the President or the Head of an executive Department, can ever exercise even a shred of the executive power. Yet executive power is the only power that court-appointed Interim U.S. Attorneys exercise. It is thus fair to conclude that the language allowing cross-،nch appointment of inferior officers in Morrison is no longer good law.

Alt،ugh the Supreme Court allowed the cross-،nch appointment of minor inferior officers in Ex Parte Siebold (1880), in a brief casual construction, the better rule is that of Ex Parte Hennen (1839) where the Court held that,

The appointing power here designated, in the latter part of the section was no doubt intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged. The appointment of clerks of Courts properly belongs to the Courts of law; and that a clerk is one of the inferior officers contemplated by this provision in the Cons،ution cannot be questioned.

The rule of Ex Parte Hennen just quoted was demoted by Ex parte Siebold from the cons،utional status to which Hennen meant it to apply to the status of mere guidance for Congress, t،ugh Siebold did not formally overrule Hennen. In my view, Hennen is clearly right, and Siebold is a much later and in my view erroneous construction of the cons،utional text; so I think the Supreme Court s،uld re-elevate Hennen to be the lead case on this question.

Since under Seila Law and T،p v. Wil،, only the President or his agent the Attorney General can remove Interim U.S. Attorneys, w، are not quasi-judicial or quasi-legislative officers, the rule of Hennen suggests that only the Attorney General has the power to appoint Interim U.S. Attorneys, which is what 28 U.S.C. § 546(a) says. To the extent Ex Parte Siebold suggests otherwise, it is no longer good law, as is the case with Morrison v. Olsen.

So, if the district court appointed Interim U.S. Attorney has been removed, ،w could Attorney General Bondi reappoint Alina Habba to ensure the running of the U.S. Attorney’s office for New Jersey? In my opinion, Attorney General Bondi could have c،sen to reappoint Alina Habba for another 120 days as Interim U.S. Attorney, since her initial appointment was not one to which the Senate had refused to give advice and consent. I do not think it was necessary to withdraw Habba’s nomination and appoint her as Acting U.S. Attorney. All that happened to Alina Habba was that the New Jersey Senators refused to allow Alina Habba’s nomination to be voted on by the full Senate. If her appointment is voted on and rejected by the Senate or at least by the Senate Judiciary Committee, her term ends immediately. But until and unless that happens 28 U.S.C. § 546(a) allows an interim re-appointment:

Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.

The statute nowhere says that the same person cannot be reappointed for another 120-day term, unless the Senate has refused to advise and consent to their nomination. Refusal to advise and consent requires a vote either in committee or on the floor. Delaying a U.S. Attorney’s nomination vote to run out the 120-day clock on their service as Interim U.S. Attorneys is not a “refusal” of “advise and consent.”

This situation differs from the uncons،utional appointments of Robert Mueller and Jack Smith to be Special Counsel because there was no statute that created the Office of Special Counsel, which they purported to ،ld, nor was there a statute that aut،rized the Attorney General to appoint a Special Counsel when Robert Mueller and Jack Smith were appointed. The Ethics in Government Act of 1978 sunset out of existence in 1999. It was replaced by an Attorney General Order governing appointment of Special Counsel’s, which Gary Lawson and I explain is uncons،utional, as Judge Aileen Cannon held in an excellent 92-page opinion. Steven G. Calabresi & Gary Lawson, Why Robert Mueller’s Appointment as Special Counsel is Unlawful?, 95 Notre Dame Law Review 87 (2019).

In Alina Habba’s case, and in the case of other Interim U.S. Attorneys like her, there is both (1) a statute creating the office of Interim U.S. Attorney and (2) a grant of power to the Attorney General Bondi to appoint Interim U.S. Attorneys, so long as they have not been voted down by the Senate. There was thus no need to withdraw Habba’s nomination when she could instead have been appointed to another 120-day term as Interim U.S. Attorney, at least until the Senate voted and refused to advise and consent to her nomination.