The dangerous loophole turning U.S. attorney’s offices into political instruments

In February 1897, all criminal prosecutions in the District of Columbia stopped. Trials were postponed. New arrestees unable to post bond faced indefinite detention. A wanted fugitive captured in another state could not be extradited. For 22 days, no prosecutorial authority existed in the nation’s capital.

The cause of this disruption? The absence of a U.S. district attorney (as today’s U.S. attorneys were then called).

On Feb. 6, 1897, the term of the incumbent, Arthur A. Birney, expired. A few days before, the lame-duck president, Grover Cleveland, had nominated the head of the local bar association, Henry E. Davis, to succeed Birney. However, the Senate declined to act on the nomination. When Birney left office, no statute clearly provided for the appointment of an interim district attorney for the capital.

Without a Senate-confirmed official or any mechanism for the appointment of an interim, it was understood that there was no place for the prosecutorial power to reside. The stalemate ended only after Congress passed legislation permitting the local federal court to appoint an interim district attorney; President Cleveland reluctantly signed the bill. On March 1, days before Cleveland left office, the Senate voted down Davis’s nomination, and the judges of the local court appointed the failed nominee to serve in an interim capacity — something he would do for the following two-and-a-half years.

This now-forgotten episode has new relevance.

Presently, 10 of the country’s 93 U.S. attorneys’ offices are leaderless. Contrary to the command of a federal statute , in these districts, there is no presidentially appointed and Senate confirmed U.S. attorney. Moreover, there is no lawfully serving interim or acting official.

Congress provided that when U.S. attorney vacancies go on for long enough, it is up to the district court to appoint an interim prosecutor. This administration has circumvented that provision by repeatedly firing the court-appointed attorneys (despite the president’s authority to do so being legally dubious, at best). These offices serve a combined population of roughly 43.2 million people, meaning about 12 percent of all Americans live in districts lacking a chief federal law enforcement officer.

Unlike in 1897, the 10 offices have not closed. Instead, each office is being led by a first assistant U.S. attorney, despite there being no statutory basis for such an arrangement. This is usually a senior career government attorney. Several of those leading the 10 offices at issue do not fit this mold — seven are political actors brought in from outside of government. The administration has used this loophole to install its chosen picks to lead these U.S. attorneys’ offices, bypassing the check of Senate confirmation.

In an upcoming article for the Wake Forest Law Review , I contend that the 1897 view should prevail: without a U.S. attorney, assistant U.S. attorneys lack the power to litigate on behalf of the government. Congress has vested prosecutorial power in the attorney general and the U.S. attorneys; assistant U.S. attorneys must derive their authority from one of those two sources.

Today’s Justice Department takes the view that the powers of the roughly 6,300 assistant U.S. attorneys come directly from the attorney general. This position renders U.S. attorneys superfluous — figureheads who can be dispatched without consequence.

But why does this matter? Because the long tradition of quasi-independent U.S. attorneys’ offices, responsive to the needs and values of their communities, is being eroded. Although supervised by the attorney general, as fellow presidential appointees, U.S. attorneys have long been afforded wide latitude to make individual prosecutorial decisions (within the administration’s policy parameters). Those offices led by assistant U.S. attorneys are entirely beholden to the attorney general. This arrangement permits political actors to micromanage the offices for political purposes.

There are costs to adhering to the formalistic view adopted in 1897, of course. But given the overtly political actions taken by this Justice Department, do the harms caused by disruption really outweigh those caused by a lack of accountability?

In 1897, it took only three weeks for Congress and the president to act. It could be that withdrawing power from these leaderless assistants today would spur the nomination and confirmation of qualified individuals who can be trusted to fairly exercise the vast federal prosecutorial power.

Jonathan S. Ross is a visiting assistant professor of law at the University of South Carolina’s Joseph F. Rice School of Law. He previously served as the acting and court-appointed interim United States Attorney for the Middle District of Alabama.