Federal Judges Appointing Prosecutors:

OpinionJournal's Political Diary reports:

[A law] signed by President Bush in the wake of the U.S. attorney controversy limits the service of interim appointments to 120 days. After that, the federal courts can step in and appoint a new interim prosecutor.

In Seattle, that power would be exercised by Federal District Chief Judge Robert Lasnik, a Clinton appointee. The judge is preparing to fill the vacancy on October 12, when the current interim U.S. attorney's tenure expires. The appointments of several other interim U.S. attorneys expire on the same day, with no sign that the White House is preparing to nominate anyone.

How can federal judges appoint prosecutors? Isn't that the Executive's job?

Article II, section 2 of the Constitutions provides that

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States ...: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

So Congress may never appoint executive or judicial officials, except to agencies that are pretty much purely advisory. But judges may, if authorized by Congress. And while one might think that judicial appointments could only extend to judicial subordinates — and not to quintessential executive officials such as prosecutors — the Constitution's text doesn't so state, and the Court has held that such interbranch appointments are generally permissible. So federal law may indeed provide, as it now does, that a federal court can appoint an interim prosecutor. As I understand it, the controversy over the constitutionality of independent prosecutors revolved chiefly around the President's lack of categorical power to remove such prosecutors; the prosecutors' appointment by a panel of federal judges was not generally seen as constitutionally troublesome.

Federal law also provides that Federal Public Defenders be appointed by the federal court of appeals, though it's not clear to me whether a federal public defender would be seen as an inherently executive branch official the way a federal prosecutor would be.

UPDATE: I at first said only that "no caselaw (to my knowledge) ... holds" that interbranch appointments of prosecutors by judges are unconstitutional; I have since changed this to more firmly make clear that the Court upheld such interbranch appointments. Of course, Morrison v. Olson, which I had mentioned elsewhere in the post, squarely held this; for some reason, I just didn't focus on that when writing the "no caselaw (to my knowledge) so holds" sentence. D'oh. Thanks to Marty Lederman for setting me straight on this.

JWR (mail):
Re: Federal Public Defenders. I don't think they "would be seen as an inherently executive branch official" for the simple reason that they are not, in any way as far as I can tell, part of the executive branch. They are part of the judicial branch, administratively, and are funded through the judicial branch.

As far as I know, there is no executive branch control or oversight over the FPD at all.
9.24.2007 1:50pm
I thought the main controversy in Morrison was whether the independent prosecutor was an "inferior officer"; since "superior" officers must be appointed by the president with senate advice and consent.
9.24.2007 1:55pm
Does this mean Kasnik will recuse himself from all criminal cases handled by his own appointee?
9.24.2007 2:29pm
Apologies to Judge Lasnik for mangling his name.
9.24.2007 2:30pm
Ed Unneland (mail):
As I understand it, one reason for the historic power exercised by District Courts to appoint interim United States attorneys was due to the slowness of communications between many part of the United States. Say an old-style circuit court was to sit in New Hampshire (meaning, a Supreme Court justice was holding court along with the District Judge). Only circuit courts could hear certain serious civil and criminal cases, so these cases would back up waiting for a circuit-riding Supreme Court justice to arrive. Using the judicial appointments power, Congress allowed the District Courts to appoint interim United States Attorneys so that if there was a vacancy these cases could still proceed while waiting for the President to act and for news of the action to arrive.
9.24.2007 2:43pm
This was the law for quite some time before the power was removed from the district courts and vested in the Attorney General in a provision that was apparently slipped into the Patriot Act revision at the last minute. This post makes it sound like we're seeing a new development in the law, as opposed to a return of the status quo ante.
9.24.2007 3:02pm
M. Lederman (mail):
Eugene: The issue of whether courts can appoint inferior *executive branch* officers was raised in Morrison (IIRC, the court of appeals had answered "no"); but the Court held that such "interbranch" appointments are permissible. 487 U.S. at 673-676. Thus, the only remaining issue is whether U.S. Attorneys are inferior officers, and OLC long ago concluded that they are (a view that a couple of lower courts have also adopted).
9.24.2007 3:45pm
In Texas at least, judges can appoint special or pro tem prosecutors when the regular prosecutor is disqualified in some way.
9.24.2007 4:59pm