The Constitutional and Statutory Framework Organizing the Office of the United States Attorney

• Publication year: 2007
• Citation: Vol. 31 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 31, No. 2WINTER 2008

PUBLIC POLICY FORUM: U.S. ATTORNEYS: ROLES AND RESPONSIBILITIES INTRODUCTION

The Constitutional and Statutory Framework Organizing the Office of the United States Attorney

Christian M. Halliburton(fn*)

After decades if not centuries of relative stability, the operation and Office of the United States Attorney was thrown into deep political turmoil in 2006. What had long been considered a position defined by its independence, integrity, and commitment to principles of law, was suddenly being subject to largely covert partisan pressures and increasingly aggressive centralized management by the Department of Justice. The American public, and many of the U.S. Attorneys themselves, remained largely unaware of these backstage manipulations until the press announced the mass exodus of nine highly esteemed U.S. Attorneys from around the country, each of whom may have lost their job because of the perceived threat they individually and collectively posed to the Bush Administration's political hegemony and socio-legal agenda.

The termination of these high-performing U.S. Attorneys, together with a number of forced resignations occurring during the same period of time, has provoked substantial criticism and close scrutiny of the people who brought about these terminations and of the reasons for their actions. Indeed, given the constitutional, statutory, and historical basis of the Office of the United States Attorney, both the policies and practices of the current White House administration and the Department of Justice have been called into serious question, and answers have not been readily forthcoming.

This shameful spectacle (which former Attorney General Alberto Gonzalez flippantly referred to as nothing more than "an overblown personnel matter"(fn1)) played itself out in the national news, and was characterized by ineffectual congressional inquiries, less-than-credible finger-pointing by current and former Administration officials, and the most remarkable loss of communal short term memory since the Iran-Contra debacle. Yet this is not simply an instance of the government circus run amok; it also represents a tremendous challenge to the pursuit of social justice. By ignoring the founding principles of political equality and faithful service of the rule of law, many actors in this political drama have willingly compromised the system of rules and procedures originally adopted to protect against the arbitrary abuse of government power.

The delicate balance anticipated by that system is reflected in the constitutional and statutory framework organizing the Office of the United States Attorney. Most saliently, the Constitution provides that "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose appointments ... shall be established by law."(fn2) While the United States Attorney is one of those officers "whose appointments shall be established by law,"(fn3) it is also the case that the Office is essential to the Executive's obligation to "take Care that the Laws be faithfully executed."(fn4) In general, presidential power to appoint ambassadors and officers of the United States, including U.S. Attorneys, is nearly plenary (assuming that the advice and consent of the Senate is obtained), and is construed as being essential to the discharge of the Executive office. Although it is nowhere mentioned in the Constitution itself, the President's power of removal is inferred from the existence of the...