Bonus 168: Appointing (and Removing) U.S. Attorneys

A quick primer on the overlapping authorities for appointing and removing U.S. Attorneys—and the chaos unfolding in New York and New Jersey as the Trump administration tries to bypass the Senate.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, I put much of the weekly bonus issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit.

Although the Supreme Court made news earlier today with its latest grant of emergency relief to the Trump administration (clearing the way for the removal of members of the Consumer Product Safety Commission), I thought I’d use this week’s bonus issue to tackle a broader subject that’s recently been in the news in both the Northern District of New York and the District of New Jersey—the appointment and removal of U.S. Attorneys. In particular, with the Trump administration seemingly intent on using (and, in some respects, abusing) the relevant authorities to install lawyers who apparently can’t get confirmed by even this Senate, it seems worth laying out exactly how U.S. Attorneys can be (and have been) both appointed and removed.

To make a long story short, although the details matter, the bottom line is that there’s a meaningful difference between what happened in Albany and what’s happening in New Jersey—not in the (entirely appropriate) behavior of the district courts in both cases, but in both the Attorney General’s inappropriate effort to fire the court-appointed prosecutor in New Jersey and the transparent attempt in the New Jersey case to end-run the (already weak) limits of the Federal Vacancies Reform Act to install unconfirmable individuals as lead local federal prosecutors.

For those who aren’t paid subscribers, we’ll be back with our regular coverage of the Supreme Court (and related topics) no later than Monday. For those who are, please read on.

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