Prosecution: United States Attorney

An United States attorney is the chief federal law enforcement officer in one of the ninety-four judicial districts in the United States (excepting Guam and the Northern Mariana Islands, which share a United States attorney). Appointed by the president, with the advice and consent of the Senate, United States attorneys work with grand juries and law enforcement agencies to investigate federal crimes, authorize or decline prosecutions, and determine the charges to be brought and the manner of prosecution. Overseeing a staff of assistant United States attorneys who conduct much of the day-to-day work of the office, the United States attorney is responsible for trying federal criminal cases on behalf of the United States, as well as negotiating guilty pleas and representing the United States in the appellate courts within the district. The United States attorney is also the principal litigator for the United States within his or her district in civil matters.

United States attorneys differ from state and local prosecutors in several respects. First, unlike district attorneys who must rely principally upon state and local police for investigative assistance, United States attorneys can typically draw upon the national resources and personnel of federal law enforcement agencies like the Federal Bureau of Investigation and the Drug Enforcement Administration. (This is obviously useful in investigations and prosecutions that involve witnesses or evidence located in another district or even another country.) Next, while the legal authority of local prosecutors to investigate crime is generally limited to the state in which they work, the United States attorney can bring to bear the broader legal authority of the federal government. Working with a federal grand jury, which has nationwide subpoena power, the U.S. attorney can compel witnesses to appear in his or her district from wherever in the country they may be found. When a federal criminal defendant is arrested in another district on criminal charges brought by the United States attorney, there is no need for extradition; after a brief hearing to establish his identity, the defendant is simply transported from the district of arrest to the district where charges are pending.

Finally, and perhaps most significantly, most local prosecutors are elected to serve as the principal prosecuting authorities in their jurisdictions and, with their assistants, are broadly responsible to the electorate for the effective enforcement of criminal law. (There are roughly 25,000 to 30,000 state and local prosecutors nationwide; in 1996 these officials filed close to 998,000 felony charges.) The presidentially appointed federal prosecutor is somewhat different. Subject to removal by the president, he or she is responsible for protecting direct federal interests in the enforcement of certain laws—those reaching international terrorist activity, for instance, or prohibiting false statements to federal agencies or the counterfeiting of U.S. currency. More commonly, however, the federal prosecutor faces situations in which possible federal charges overlap with charges that could be prosecuted by state or local officials, who handle most criminal cases. (There were 4,773 assistant U.S. attorneys working in the ninety-three U.S. attorneys' offices as of August 1999; together, these offices have averaged about 35,000 cases annually since 1930.)

Because the U.S. attorney is not the principal prosecuting authority in a jurisdiction and is not viewed as such, a federal prosecutor may well decline prosecution in circumstances where potential criminal charges can be effectively handled by state or local authorities. On the other hand, the U.S. attorney may elect to prosecute—either to vindicate federal interests implicated in a case or to assist state and local authorities in addressing more local concerns. In practice, this means that the United States attorney probably exercises even broader prosecutorial discretion than most other prosecutors.

The Attorney General of the United States has statutory authority to supervise the work of the United States attorneys and the U.S. attorneys act generally within guidelines promulgated by the Department of Justice. In practice, however, the federal prosecutor has considerable autonomy. The daily operations and priorities of each U.S. attorney's office are largely under the U.S. attorney's control. And though the attorney general has the authority to take direct control of any case falling within the jurisdiction of the U.S. attorney, this authority is rarely invoked. As set forth below, the United States attorney's relative freedom from central authority derives not only from his or her distance from Washington, D.C., but also from the historical development of the position and the process by which each United States attorney is selected.