The Revolving Door of U.S. Attorneys for the Northern District of New York

The big news out of the Justice Department on Wednesday was made by Attorney General Pam Bondi, who, testifying in the House of Representatives, proved that she is extremely well qualified to hold the office she does . . . given who the president is. But while Bondi was hissing that Representative Jamie Raskin--who is not only an outstanding lawyer but a former constitutional law professor--is "not even a lawyer," her top deputy, Todd Blanche, was taking on the third branch of the U.S. government.

Federal judges in the Northern District of New York had just named Donald Kinsella as US Attorney to fill a vacancy created when the term of the previous acting US Attorney, John Sarcone, expired. Blanche promptly sent Kinsella an email and, with the dignity we have come to expect from this administration, tweeted "Judges don’t pick U.S. Attorneys, @POTUS does. See Article II of our Constitution. You are fired, Donald Kinsella."

Can that be right? Not exactly but maybe kind of sort of. As I shall now explain, while Blanche cited the wrong presidential power--appointment rather than removal--the upshot is correct. The result may well be a game of musical chairs.

A federal statute allows the Attorney General to name a US Attorney to fill a vacancy for 120 days. Typically, by the time that period expires, the president will have nominated and the Senate will have confirmed a US Attorney, but in the event that hasn't happened yet, the same statute authorizes the district court for the relevant jurisdiction to appoint an interim US Attorney. By citing Article II, presumably Blanche meant that he thinks the statutory authorization for such a judicial appointment is unconstitutional. But he's almost certainly wrong about that.

When the statute authorizing district court appointment of an interim US Attorney was challenged, it was upheld in the lower courts. Although the Supreme Court hasn't weighed in on this exact question, the lower court decisions are clearly correct, given Morrison v. Olson--which upheld judicial appointment of the independent counsel based on the supposition that the independent counsel is an "inferior officer" the appointment authority for whom Congress may vest, as the Constitution's Appointments Clause provides, "in the courts of law." A regular US Attorney is subject to more control by the Attorney General and the president than the independent counsel was in Morrison, so the Appointments Clause holding in that case certainly applies for a US Attorney. That's why those lower court opinions are correct in citing Morrison as support for the conclusion that a US Attorney is an inferior officer.

To be sure, if (and very likely when) the Court holds in Trump v. Slaughter that Congress lacks the constitutional authority to limit presidential removal power to a greater degree than prior doctrine has said, that could result in the overruling of Morrison's holding with respect to removal. But nothing at issue in Slaughter or any other case on the horizon would undermine Morrison's holding with respect to appointment. So Blanche's tweet is wrong about appointments.

But it doesn't matter, because Blanche is right in his tacit assertion that the president can fire a US Attorney, even one named by judges to fill a vacancy. That's true regardless of the outcome in Slaughter. No statute limits the president's removal authority over US Attorneys, and past presidents have exercised it. So the position is really once again vacant. What happens now?

In the Alina Habba case, the Third Circuit recently held that the 120-day limit is the cap on executive replacement. The Third Circuit rejected an argument by the Trump DOJ that the clock could be reset and a 210-day time limit in the general vacancy statute could be applied. However, I would not be surprised if the DOJ sticks with the position that lost in the Habba case and attempts to rename Sarcone or someone else to the position before the federal district court judges again name Kinsella or someone else to the position. Eventually SCOTUS might need to weigh in.

All of this trouble could be avoided if Trump and the Republican Senate acted with greater alacrity in respectively naming and confirming US Attorneys to regular positions. Why they haven't done so is a bit of a mystery. After all, the Senate confirmed Jeanine Pirro to be US Attorney for the District of Columbia, Pete Hegseth to be Defense Secretary, and RFK Jr. to be Secretary of HHS, so we know the bar for Senate confirmation is set extremely low. In the meantime, we can expect more buffoonery, especially if the court renames Kinsella and Blanche re-fires him. Lather; rinse; repeat; ad infinitum.

--Michael C. Dorf