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Prosecution: United States Attorney - The Selection Process

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Both the Constitution and enabling legislation give the power to appoint United States attorneys to the president, subject to the Senate's "advice and consent." In practice, the senators of the president's political party from a given state often make the initial selection of a candidate for United States attorney. If both senators are from an opposing party, the state's congressional delegation or other state party officials may play a leading role. Each United States attorney is appointed for a term of four years, but generally continues in office at the expiration of his or her term until a successor is appointed. United States attorneys are subject to removal by the president. Assistant United States attorneys are appointed by the attorney general and are subject to removal by him or her, although in practice, the hiring and removal of assistant United States attorneys (who enjoy civil service protection) is handled at the local level. New U.S. attorneys will thus generally command a staff of assistants largely named by predecessors in office, but will themselves make the hiring decisions necessary to appoint new assistants.

The selection process for United States attorneys supports the traditional autonomy with which they have operated. Individuals who become United States attorneys typically do not view themselves as having obtained their appointment directly from the attorney general or the president. In congressional hearings in 1978, then–Attorney General Griffin Bell identified this as a problem, arguing that because United States attorneys may not feel indebted to the attorney general for their positions, they are less likely to accede to supervision emanating from him or her. Bell supported legislation giving the attorney general the power to select and remove United States attorneys. Such legislation, however, was never enacted.

There may be merit in Attorney General Bell's observation that lodging the appointment power for United States attorneys in the Attorney General would produce United States attorneys more responsive to his or her concerns. Whether such increased responsiveness to national law enforcement officials is itself seen as a worthy goal of reform efforts, however, is likely to depend, at least in part, on the view one takes of the United States attorney's role. If the United States attorney's principal role is to implement national law enforcement priorities articulated by the president and the attorney general, the United States attorney should presumably be strictly accountable to these officers, and perhaps appointed directly by them. If, on the other hand, the United States attorney is to be responsive to local concerns—if it is a substantial part of the role to bring federal law enforcement resources to bear on local problems—it may be a strength of the current selection process that it often involves persons familiar with and directly responsible to the local electorate, such as senators and other locally elected officials.

It is also important that the United States attorney have and be perceived as having the independence necessary to enforce the law fairly—and particularly in those contexts where law enforcement policy and even individual prosecutions may have political overtones. The multiple influences brought to bear in the current selection process may help realize this end by securing for the federal prosecutor some measure of autonomy from any one of these influences.

Thus, the involvement of national political figures in the selection process helps to ensure the United States attorney's independence from the control of local officials. A federal prosecutor perceived as having obtained his or her appointment from a narrow circle of partisan politicians might well find his or her ability to discharge the functions of the office compromised. Similarly, however (and despite a tradition of nonpartisanship in the discharge of the functions of the office), attorney generals are not infrequently drawn into situations where there may be at least the perception of a conflict between their law enforcement obligations and their perceived personal and political loyalties to the presidents who appointed them. (It was the perception of the potential for such conflicts that resulted in the enactment of the Independent Counsel Statute, which Congress allowed to lapse only in the wake of the controversy surrounding Independent Counsel Kenneth Starr's investigation of President William Jefferson Clinton.) In such cases, it may be important that United States attorneys retain a measure of independence from the attorney general as well as local officials, lest the law enforcement activities of these federal prosecutors be influenced by or perceived as influenced by inappropriate national political concerns.

Some tradition favoring "merit," as opposed to purely "political" appointment of United States attorneys, also helps ensure their independence from narrow political control. This tradition manifests itself in a variety of ways. For example, senators not infrequently set up nominating commissions to submit names of suitable candidates for United States attorney slots. Some United States attorneys have remained in office through a change in administration—implicitly attesting to the relatively nonpartisan way in which these offices can function and can be perceived.

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