Q 4484, 4485 28 US 541 Additional Precedent/Opinion
Relevant Opinion from Carter Admin OLC.
November 26, 1979
'''79-83 MEMORANDUM OPINION FOR THE ACTING
DIRECTOR, EXECUTIVE OFFICE FOR U.S.
ATTORNEYS'''
U.S. Attorneys—Removal of Court-Appointed
2 notable excerpts from brief
1) This responds to your request concerning whether the power to remove
a U.S. Attorney appointed by a district court pursuant to 28 U.S.C. § 546
is vested in the President, the Attorney General, or the appointing court.1
To our knowledge, the question is one of first impression.
Pursuant to 28 U.S.C. § 541(a), the President appoints U.S. Attorneys
by and with the advice and consent of the Senate. Subsection (c) of that
section provides that “ [e]ach United States Attorney is subject to removal
by the President.” The question is whether the President’s removal power
under subsection (c) extends to U.S. Attorneys appointed by the court pursuant
to § 546, or whether they can be removed only by the court that appointed
them. In our view the first interpretation is the correct one.
2) Your inquiry also asks whether the Attorney General has that power.
We answer this questions in the negative in view of our interpretation of
§ 541(c) as constituting—at least in part—the specific exercise of
legislative power under Article II, section 2, clause 2, vesting in the President
the power of removing a court-appointed U.S. Attorney.
Whether the President should exercise the power of removal is, of
course, a question of policy.3 We note in this connection that Carey v.
United States, 132 Ct. Cl. 397 (1955), stands for the proposition that the
President need not actually sign removal papers, but that he may leave to
the Attorney General the implementation of an oral Presidential decision
to remove a U.S. Attorney appointed with the advice and consent of the
Senate; indeed, that the President may authorize the Attorney General to
do what he feels is warranted and then orally approve the action taken by
the Attorney General. Carey at 401-403.4 But we do not recommend this
course of action in the situation at hand, since the incumbent U.S. Attorney
apparently has the backing of the district court. That court might
react unfavorably to any action that does not carefully comport with the
letter of the statute.
J o h n M . H a r m o n
Assistant Attorney General
Office o f Legal Counsel
https://www.justice.gov/file/22221/download
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