The Volokh Conspiracy - Federal Judges Appointing Prosecutors:

OpinionJournal's Political Diary reports:

[A law] signed by President Bush in the wake of the U.S. attorney controversy limits the service of interim appointments to 120 days. After that, the federal courts can step in and appoint a new interim prosecutor.

In Seattle, that power would be exercised by Federal District Chief Judge Robert Lasnik, a Clinton appointee. The judge is preparing to fill the vacancy on October 12, when the current interim U.S. attorney's tenure expires. The appointments of several other interim U.S. attorneys expire on the same day, with no sign that the White House is preparing to nominate anyone.

How can federal judges appoint prosecutors? Isn't that the Executive's job?

Article II, section 2 of the Constitutions provides that

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States ...: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

So Congress may never appoint executive or judicial officials, except to agencies that are pretty much purely advisory. But judges may, if authorized by Congress. And while one might think that judicial appointments could only extend to judicial subordinates — and not to quintessential executive officials such as prosecutors — the Constitution's text doesn't so state, and the Court has held that such interbranch appointments are generally permissible. So federal law may indeed provide, as it now does, that a federal court can appoint an interim prosecutor. As I understand it, the controversy over the constitutionality of independent prosecutors revolved chiefly around the President's lack of categorical power to remove such prosecutors; the prosecutors' appointment by a panel of federal judges was not generally seen as constitutionally troublesome.

Federal law also provides that Federal Public Defenders be appointed by the federal court of appeals, though it's not clear to me whether a federal public defender would be seen as an inherently executive branch official the way a federal prosecutor would be.

UPDATE: I at first said only that "no caselaw (to my knowledge) ... holds" that interbranch appointments of prosecutors by judges are unconstitutional; I have since changed this to more firmly make clear that the Court upheld such interbranch appointments. Of course, Morrison v. Olson, which I had mentioned elsewhere in the post, squarely held this; for some reason, I just didn't focus on that when writing the "no caselaw (to my knowledge) so holds" sentence. D'oh. Thanks to Marty Lederman for setting me straight on this.

	[Eugene Volokh, September 24, 2007 at 12:43pm] Trackbacks Federal Judges Appointing Prosecutors: OpinionJournal's Political Diary reports: [A law] signed by President Bush in the wake of the U.S. attorney controversy limits the service of interim appointments to 120 days. After that, the federal courts can step in and appoint a new interim prosecutor. In Seattle, that power would be exercised by Federal District Chief Judge Robert Lasnik, a Clinton appointee. The judge is preparing to fill the vacancy on October 12, when the current interim U.S. attorney's tenure expires. The appointments of several other interim U.S. attorneys expire on the same day, with no sign that the White House is preparing to nominate anyone. How can federal judges appoint prosecutors? Isn't that the Executive's job? Article II, section 2 of the Constitutions provides that [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States ...: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. So Congress may never appoint executive or judicial officials, except to agencies that are pretty much purely advisory. But judges may, if authorized by Congress. And while one might think that judicial appointments could only extend to judicial subordinates — and not to quintessential executive officials such as prosecutors — the Constitution's text doesn't so state, and the Court has held that such interbranch appointments are generally permissible. So federal law may indeed provide, as it now does, that a federal court can appoint an interim prosecutor. As I understand it, the controversy over the constitutionality of independent prosecutors revolved chiefly around the President's lack of categorical power to remove such prosecutors; the prosecutors' appointment by a panel of federal judges was not generally seen as constitutionally troublesome. Federal law also provides that Federal Public Defenders be appointed by the federal court of appeals, though it's not clear to me whether a federal public defender would be seen as an inherently executive branch official the way a federal prosecutor would be. UPDATE: I at first said only that "no caselaw (to my knowledge) ... holds" that interbranch appointments of prosecutors by judges are unconstitutional; I have since changed this to more firmly make clear that the Court upheld such interbranch appointments. Of course, Morrison v. Olson, which I had mentioned elsewhere in the post, squarely held this; for some reason, I just didn't focus on that when writing the "no caselaw (to my knowledge) so holds" sentence. D'oh. Thanks to Marty Lederman for setting me straight on this.