Appointment terms for U.S. Attorneys

Going through this set of e-mails [pdf] relating to the U.S. Attorneys brings up an important point often omitted by the media, but quite properly considered by the Administration. One of the hallmarks of the Bush Administration has been its top-to-bottom review of constitutional and statutory provisions regarding the powers and responsibilities of the presidency, and a willingness to stop past practices which had arisen over the course of time, through administrations of both parties, which were not consistent with those powers and responsibilities. I remember being cheered by this new approach when I learned that the Navy was ending the practice of referring to its top admirals as "Commanders-in-Chief" of their ocean (Tom Clancy readers will recognize the abbreviations, like CINCLANTFLT, Commander-in-Chief, Atlantic Fleet). There's only one "commander in chief," and that's the president.

But back to the U.S. Attorneys. Few if any of the pundits commenting on this story have pointed out that U.S. Attorneys are appointed for only a 4-year term. This distinguishes them from, say, cabinet secretaries who are appointed for an indefinite term, serving solely at the pleasure of the President. While U.S. Attorneys may be removed at will by the President, for the reasons Simon gives, they are also appointed for a specific period of time. After their term expires, they only serve until their replacement is sworn in. They need not be "fired," only replaced, because their term of appointment had expired.

This explains part of the controversy over Clinton's unprecedented mass-firing of U.S. Attorneys. The prior custom was to replace U.S. Attorneys only at the expiration of their 4-year terms, and it is this custom which Clinton violated. He did indeed "fire" the U.S. Attorneys (or demand their resignations, which most provided), because he curtailed the term to which they were otherwise entitled by statute. Had he waited until each U.S. Attorneys' term had expired to replace them, there would have been no uproar.

The position of U.S. Attorney is created by statute, 28 USC § 541, which provides:

(a) The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.

(b) Each United States attorney shall be appointed for a term of four years. On the expiration of his term, a United States attorney shall continue to perform the duties of his office until his successor is appointed and qualifies.

(c) Each United States attorney is subject to removal by the President.

When you go through the e-mails, particularly the set I link to above, you will see that the Administration was preparing for the upcoming expiration of the 4 year terms of most of the U.S. Attorneys they had appointed. It is entirely proper and indeed laudatory that they were reviewing the performance of their appointees at the proper time, when their 4 year term expired. It was most appropriate for the President to consider whether it should simply leave all these U.S. Attorneys in place indefinitely, most likely until the end of the Administration, or if it should remove some of the poorer performers.

The staff of the Justice Department went through and reviewed the performance of all the U.S. Attorneys. They weren't acting on complaints from Senators, they were doing their job, as part of a comprehensive review. Appointment as a U.S. Attorney does not guarantee one a job for the full term of the President. It shouldn't even create an expectation of a job for more than the 4 year term. Had the President removed these individuals before their initial term had expired, then I would agree that they had been "fired." Since their term had expired, they were merely replaced.