•  
  •  
 
Brooklyn Law Review

Abstract

Section 546(d) of Title 28 of the United States Code authorizes a district court to appoint an interim United States Attorney during any vacancy of more than 120 days. The provision has been in place since 1863 and, for most of that time, Presidents have made no attempt to remove court-appointed interim U.S. Attorney through means other than the nomination and confirmation of a replacement. That changed initially in 2020, when President Trump attempted to remove Geoffrey Berman of the Southern District of New York. In 2025, the President went further, removing nine court-appointed interim U.S. Attorneys. These moves, unprecedented, rest on very uncertain legal footing. After providing background information on the statutes governing the appointment of interim and acting U.S. Attorneys, this article considers the question of whether the President has the authority to remove those appointed by the judiciary pursuant to section 546(d). It first considers whether, as the Department of Justice suggested in a 1979 memo, the statute authorizing the President to fire U.S. Attorneys generally extends to court-appointed interim U.S. Attorneys. The article ultimately concludes that in light of the statutes’ structures and histories, there is strong evidence that Congress did not intend for the general removal provision to apply to section 546(d). The article then addresses whether the President’s inherent Article II removal power, stemming from the Constitution’s Vesting and Take Care Clauses permits the President to remove an inferior officer appointed by another branch. The Supreme Court has discussed this inherent power in recent cases. After a discussion of those cases, the article ultimately concludes that those cases do not support the view that the President may make interbranch removals, as doing so would effectively negate Congress’s ability to vest the appointment of inferior officers in the judiciary. The final sections of the article consider whether a court can, as a practical matter, stop the President from removing a court-appointed interim U.S. Attorney. The article contends that courts lack the capacity to prevent such removals. To preserve the judiciary’s institutional authority, the article suggests that courts should, in their discretion, decline to make section 546(d) appointments, particularly when making an appointment is likely to result in the President attempting to remove the court’s appointee.

Download

Share

COinS