United States attorneys are officials of the U.S. Department of Justice who serve as the chief federal law enforcement officers in each of the 94 U.S. federal judicial districts. Each U.S. attorney serves as the United States' chief federal criminal prosecutor in their judicial district and represents the U.S. federal government in civil litigation in federal and state court within their geographic jurisdiction. U.S. attorneys must be nominated by the president and confirmed by the Senate, after which they serve four-year terms.
Currently, there are 93 U.S. attorneys in 94 district offices located throughout the United States, Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands. One U.S. attorney is assigned to each of the judicial districts, with the exception of Guam and the Northern Mariana Islands, where a single U.S. attorney serves both districts. Each U.S. attorney is the chief federal law enforcement officer within a specified jurisdiction, acting under the guidance of the United States Attorneys' Manual.[1] They supervise district offices with as many as 350 assistant U.S. attorneys (AUSAs) and as many as 350 support personnel.[2]
U.S. Attorney's Offices are staffed mainly by assistant U.S. attorneys (AUSA). Often colloquially called "federal prosecutors", assistant U.S. attorneys are government lawyers who act as prosecutors in federal criminal trials and as the United States federal government's lawyers in civil litigation in which the United States is a party. In carrying out their duties as prosecutors, AUSAs have the authority to investigate persons, issue subpoenas, file formal criminal charges, plea bargain with defendants, and grant immunity to witnesses and accused criminals.[3]
The Office of the United States Attorney was created by the Judiciary Act of 1789, along with the office of Attorney General and United States Marshal. The same act also specified the structure of the Supreme Court of the United States and established inferior courts making up the United States Federal Judiciary, including a district court system. Thus, the office of U.S. Attorney is older than the Department of Justice. The Judiciary Act of 1789 provided for the appointment in each judicial district of a "Person learned in the law to act as attorney for the United States...whose duty it shall be to prosecute in each district all delinquents for crimes and offenses cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned..."
Prior to the existence of the Department of Justice, the U.S. attorneys were independent of the attorney general, and did not come under the AG's supervision and authority until 1870, with the creation of the Department of Justice.[4][5]
Appointment
U.S. attorneys are appointed by the president of the United States[6] for a term of four years,[7] with appointments subject to confirmation by the Senate. A U.S. attorney continues in office, beyond the appointed term, until a successor is appointed and qualified.[8] By law, each United States attorney is subject to removal by the president.[9] The attorney general has had the authority since 1986 to appoint interim U.S. attorneys to fill a vacancy.
The governing statute, 28 U.S.C.§ 546 provided, up until March 9, 2006:
(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 title; 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.
(c) A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President under section 541 of this title.
This, in effect, extinguished the 120-day limit on interim U.S. attorneys, and their appointment had an indefinite term. If the president failed to put forward any nominee to the Senate, then the Senate confirmation process was avoided, as the Attorney General-appointed interim U.S. attorney could continue in office without limit or further action. Related to the dismissal of U.S. attorneys controversy, in March 2007 the Senate and the House voted to re-instate the 120-day term limit on interim attorneys via the Preserving United States Attorney
Independence Act of 2007. [11]
The bill was signed by President George W. Bush, and became law in June 2007.[12]
History of interim U.S. attorney appointments
Senator Dianne Feinstein (D, California), summarized the history of interim United States Attorney appointments, on March 19, 2007 in the Senate.[13]
When first looking into this issue, I found that the statutes had given the courts the authority to appoint an interim U.S. attorney and that this dated back as far as the Civil War. Specifically, the authority was first vested with the circuit courts in March 1863.
Then, in 1898, a House of Representatives report explained that while Congress believed it was important to have the courts appoint an interim U.S. attorney:
"There was a problem relying on circuit courts since the circuit justice is not always to be found in the circuit and time is wasted in ascertaining his whereabouts."
Therefore, at that time, the interim appointment authority was switched to the district courts; that is, in 1898 it was switched to the district courts.
Thus, for almost 100 years, the district courts were in charge of appointing interim U.S. attorneys, and they did so with virtually no problems. This structure was left undisturbed until 1986 when the statute was changed during the Reagan administration. In a bill that was introduced by Senator Strom Thurmond, the statute was changed to give the appointment authority to the Attorney General, but even then it was restricted and the Attorney General had a 120-day time limit. After that time, if a nominee was not confirmed, the district courts would appoint an interim U.S. attorney. The adoption of this language was part of a larger package that was billed as technical amendments to criminal law, and thus there was no recorded debate in either the House or the Senate and both Chambers passed the bill by voice vote.
Then, 20 years later, in March 2006 – again without much debate and again as a part of a larger package – a statutory change was inserted into the PATRIOT Act reauthorization. This time, the Executive's power was expanded even further, giving the Attorney General the authority to appoint an interim replacement indefinitely and without Senate confirmation.
Role of U.S. attorneys
The U.S. attorney is both the primary representative and the administrative head of the Office of the U.S. Attorney for the district. The U.S. Attorney's Office (USAO) is the chief prosecutor for the United States in criminal law cases, and represents the United States in civil law cases as either the defendant or plaintiff, as appropriate.[14][15] However, they are not the only ones that may represent the United States in Court. In certain circumstances, using an action called a qui tam, any U.S. citizen, provided they are represented by an attorney, can represent the interests of the United States, and share in penalties assessed against guilty parties.
The Executive Office for United States Attorneys (EOUSA)[17] provides the administrative support for the 93 United States attorneys (encompassing 94 United States Attorney offices, as the Guam and the Northern Mariana Islands has a single U.S. attorney for both districts), including:
General executive assistance and direction,
Policy development,
Administrative management direction and oversight,
Map of the boundaries of the United States courts of appeals (by color) and United States District Courts. All District Courts lie within the boundary of a single jurisdiction, usually in a state (heavier lines); some states have more than one District Court (lighter lines denote those jurisdictions)
^Sisk, Gregory C. (2006). John Steadman; David Schwartz; Sidney B. Jacoby (eds.). Litigation With the Federal Government (2nd ed.). ALI-ABA (American Law Institute – American Bar Association). pp. 12–14. ISBN0-8318-0865-9.
