Posted by Eugene Volokh:
Federal Judges Appointing Prosecutors:
http://volokh.com/archives/archive_2007_09_23-2007_09_29.shtml#1190652199
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 no caselaw (to my knowledge)
so holds. So federal law may indeed provide, as [1]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 [2]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.
References
1. http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=28&sec=546
2.
http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00003006---A000-.html
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