Recently, seven US Attorneys were fired or forced to resign. Deputy Attorney General Paul J. McNulty testified before the Senate, stating that the firings were not political and are not aimed at circumventing the power of the Senate to approve new attorneys.
According to the DOJ’s website: “The Judiciary Act of 1789, ch. 20, sec. 35, 1 Stat. 73, 92-93 (1789) created the Office of the Attorney General. Originally a one-person part-time position, the Attorney General was to be ‘learned in the law’ with the duty ‘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.'”
Attorneys lack the protections of judges, although they are appointed in a similar manner: “United States Attorneys are appointed by, and serve at the discretion of, the President of the United States, with the advice and consent of the United States Senate.” If there is a vacancy, the Attorney General may appoint a temporary replacement:
- “(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 whose appointment by the President to that office the Senate refused to give advice and consent….”
Art. II requires that the President appoint, by and with consent of the Senate, all other officers of the United States. Note that the Patriot Act amended sections (c) and (d), so that the appointees may continue to serve until the end of the President’s term. That is at issue here. Mr. McNulty’s detractors claim that the firings were intended to circumvent the appointment process and hire US Attorneys without the consent of the Senate.
Ultimately, this is a separation of powers issue. The President, as the Executive entrusted with enforcing the laws of the nation, has authority over the US Attorneys, who help him to execute the laws of the nation. Former provisions (c) and (d) gave the judiciary power over Art. II matters that are explicitly delegated to the President and the Senate. It would be just as inappropriate for the House of Representatives to determine AG nominations. Furthermore, there is a constitutional difference between the ability of the Senate to influence the hiring of an officer and the firing of an officer. The governing statute is explicit: AGs, as the arm of the Executive, serve at his discretion. To not allow the President – or his officers – to remove attorneys who are not suitable is to undermine both the power of the Executive and the basic principle of separation of powers. AGs do not do the work of the Senate nor Art. III courts; they are the arm of the President.