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Abstract: Concerns over presidential use of federal prosecution as a political weapon and the overall independence of the Department of Justice have increased in recent years. While most scholarship exploring the potential for political prosecution has focused on the legal and political forces that influence prosecutorial discretion, few studies have identified the varying ways that federal prosecutors obtain their jobs or how those processes affect who serves as U.S. Attorney. This is a consequential oversight, as U.S. Attorney appointments provide an informative case study of the legal frameworks, historical conventions, and politics that influence presidential appointments more generally.
In this Article, we illustrate how historical battles across different branches of government for control of federal prosecution have resulted in legal frameworks that provide for at least seven different U.S. Attorney appointment mechanisms. We then provide both qualitative examples and quantitative analysis of U.S. Attorney appointments from 1970 to 2022 to evaluate whether U.S. Attorneys appointed through the “traditional” presidential nomination and Senate confirmation process have different backgrounds and careers than U.S. Attorneys who obtain office through “non-traditional” methods, including appointment by federal district courts.
We find that, like with other political appointees, U.S. Attorneys are increasingly likely to obtain their jobs through “non-traditional” methods. In addition, U.S. Attorneys appointed through these methods differ from their presidentially-nominated and Senate-confirmed counterparts in important ways, including their background experience and what they go on to do after serving in office. While these findings may raise alarm bells for those who worry that presidents increasingly circumvent Senate confirmation of political appointments to further executive control of government, this Article illustrates that “non-traditional” appointments are the result of over two centuries worth of bargaining between the branches over the power of appointment in an effort to prioritize expertise over politics.
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