3-2.100
United States Attorneys
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The United States Attorney serves as the chief law enforcement officer
in each judicial district and is responsible for coordinating multiple
agency investigations within that district.
There are currently 93 United States Attorneys stationed throughout the
United States, Puerto Rico, Guam and the Northern Marianas. One United
States Attorney is assigned to each judicial district with the exception of
Guam and the Northern Marianas, where a single United States Attorney serves
in both districts.
3-2.110
History
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The Office of the United States Attorney was created by the Judiciary
Act of 1789 which provided for the appointment "in each district of a meet
person learned in the law to act as attorney for the United States ...
whose duty it shall be to prosecute in each district all delinquents for
crimes and offenses, recognizable under the authority of the United States,
and all civil actions in which the United States shall be
concerned ..." 1 Stat. 92. Initially, United States Attorneys were not
supervised by the Attorney General (1 Op.Att'y Gen. 608) but Congress, in
the Act of August 2, 1861, (Ch. 37, 12 Stat. 185) charged the Attorney
General with the "general superintendence and direction duties ..."
While the precise nature of the superintendence and direction was not
defined, the Department of Justice Act of June 22, 1870 (Ch. 150, 16 Stat.
164) and the Act of June 30, 1906 (Ch. 39, 35, 34 Stat. 816) clearly
established the power of the Attorney General to supervise criminal and
civil proceedings in any district. See 22 Op. Att'y Gen. 491; 23 Op.
Att'y Gen. 507. Today, as in 1789, the United States Attorney retains, among
other responsibilities, the duty to "prosecute for all offenses against the
United States." See 28 U.S.C. Sec. 547(1). This duty is to be
discharged under the supervision of the Attorney General. See 28
U.S.C. Sec. 519.
3-2.120
Appointment
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United States Attorneys are appointed by the President with the advice
and consent of the Senate for a four-year term. See 28 U.S.C. Sec.
541. Upon expiration of this term, the United States Attorney continues to
perform the duties of the office until a successor is confirmed. United
States Attorneys are subject to removal at the will of the President.
See Parsons v. United States, 167 U.S. 324 (1897).
3-2.130
Residence
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All United States Attorneys must reside in the district of their
appointment except that in the District of Columbia and the Southern and
Eastern Districts of New York, they may reside within 20 miles of their
district. These provisions do not apply to a United States Attorney
appointed for the Northern Mariana Islands who at the same time is serving
in the same capacity in another district. See 28 U.S.C. Sec. 545.
3-2.140
Authority
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Although the Attorney General has supervision over all litigation to
which the United States or any agency thereof is a party, and has direction
of all United States Attorneys, and their assistants, in the discharge of
their respective duties (28 U.S.C. Secs. 514, 515, 519), each United States
Attorney, within his/her district, has the responsibility and authority to:
(a) prosecute for all offenses against the United States; (b) prosecute or
defend, for the government, all civil actions, suits, or proceedings in
which the United States is concerned; (c) appear on behalf of the defendants
in all civil actions, suits or proceedings pending in the district against
collectors, or other officers of the revenue or customs for any act done by
them or for the recovery of any money exacted by or paid to such officers,
and by them paid into the Treasury; (d) institute and prosecute proceedings
for the collection of fines, penalties, and forfeitures incurred for
violation of any revenue law unless satisfied upon investigation that
justice does not require such proceedings; (e) make such reports as the
Attorney General shall direct. 28 U.S.C. Sec. 547.
By virtue of this grant of statutory authority and the practical
realities of representing the United States throughout the country, United
States Attorneys conduct most of the trial work in which the United States
is a party. They are the principal federal law enforcement officers in their
judicial districts. In the exercise of their prosecutorial discretion,
United States Attorneys construe and implement the policy of the Department
of Justice. Their professional abilities and the need for their impartiality
in administering justice directly affect the public's perception of federal
law enforcement.
3-2.150
Absence from Office—Acting United States Attorney
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Each United States Attorney is authorized to designate any Assistant
United States Attorney in his/her office to perform the functions and duties
of the United States Attorney during his/her absence from office, and to
sign all necessary documents and papers as Acting United States Attorney
while performing such functions and duties. See 28 C.F.R. Sec.
0.136.
[updated May 2009]
3-2.160
Vacancy in Office—Appointments
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As amended on March 9, 2006, Section 546 of Title 28 authorizes only
the President and the Attorney General to appoint a United States Attorney
for the district in which the office of the United States Attorney is
vacant. See 28 U.S.C §§ 541, 546. The amendment also
authorizes that individuals appointed by the Attorney General to serve as
the interim United States Attorney will continue until such time as the
Attorney General takes further action or a Presidential appointment is made
pursuant to 28 U.S.C. § 541, thereby eliminating the provision of
a 120-day term for United States Attorney appointments by the Attorney
General, as well as the appointment authority for federal district courts.
See USAP 3-4.213.003.
[updated August 2006]
3-2.170
Recusals
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When United States Attorneys, or their offices, become aware of an
issue that could require a recusal in a criminal or civil matter or case as
a result of a personal interest or professional relationship with parties
involved in the matter, they must contact General Counsel's Office (GCO),
EOUSA. The requirement of recusal does not arise in every instance, but
only where a conflict of interest exists or there is an appearance of a
conflict of interest or loss of impartiality.
A United States Attorney who becomes aware of circumstances that might
necessitate a recusal of himself/herself or of the entire office, should
promptly notify GCO, EOUSA, at (202) 252-1600 to discuss whether a recusal
is required. If recusal is appropriate, the USAO will submit a written
recusal request memorandum to GCO. GCO will then coordinate the recusal
action, obtain necessary approvals for the recusal, and assist the office in
arranging for a transfer of responsibility to another office, including any
designations of attorneys as a Special Attorney or Special Assistant to the
Attorney General (see USAM 3-2.300) pursuant to 28
U.S.C. Sec. 515. See USAP 3-2.170.001 (M).
[updated February 2004]
[cited in USAM 3-1.200;
3-2.220;
Criminal Resource Manual 86]
3-2.200
Assistant United States Attorneys
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Assistant United States Attorneys are appointed by the Attorney
General and may be removed by that official. See 28 U.S.C. Sec. 542.
The Deputy Attorney General exercises the power and authority vested in the
Attorney General to take final action in matters pertaining to the
employment, separation, and general administration of Assistant United
States Attorneys. See 28 C.F.R. Sec. 0.15. Such authority may be,
and has been, delegated to the Director, Executive Office for United States
Attorneys.
Authority to appoint Assistant United States
Attorneys may be, and has been delegated to the Director, Office
of Attorney Personnel Management. Authority to effect
reprimands, suspensions, and/or removal for Assistant United
States Attorneys may be, and has been, delegated to the Director,
EOUSA.
Assistants must reside in the district of their
appointment, or within 25 miles thereof. These provisions do not
apply to an Assistant United States Attorney appointed for the
Northern Mariana Islands who at the same time is serving in the
same capacity in another district. See U.S.C. Sec.
545(a).
Assistants who are appointed on an interim basis
under 28 U.S.C. Sec. 546, and who are not candidates for
permanent appointment by the President as the United States
Attorney pursuant to 28 U.S.C. Sec. 541, shall be offered, upon
termination, reemployment to the last permanent position held.
Reemployment is subject to all conditions of employment currently
applicable to Assistants appointed pursuant to 28 U.S.C. Sec.
542. Of special note: an Assistant who served as a supervisor
before becoming the interim United States Attorney cannot be
guaranteed a return to that slot. Supervisory positions are not
permanent. Such decisions rest solely with the discretion of the
new United States Attorney. That individual is guaranteed only
of returning to a permanent AUSA position.
[updated January 1998]
[cited in USAM 3-1.200]
3-2.210
Authority
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Assistant United States Attorneys are responsible to the United States
Attorney for the performance of duties assigned by that official.
3-2.220
Recusals
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The same circumstances which require that a United States Attorney
recuse himself/herself (see USAM
3-2.170) apply to an Assistant United States Attorney. Ordinarily, the
fact that an Assistant United States Attorney recuses will not require that
the United States Attorney or the office recuse itself and the case or
matter may be reassigned to another Assistant. Specific questions should be
directed to the Legal Counsel Staff of the Executive Office for United
States Attorneys at (202) 252-1600 or the appropriate litigating
division.
3-2.300
Special Assistants
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Section 543 of Title 28 authorizes the Attorney General to appoint
Special Assistants to assist the United States Attorney when the public
interest so requires, and to fix their salaries. These Assistants are
designated as Special Assistants to the United States Attorney and are
appointed for the purpose of assisting in the preparation and presentation
of special cases. Their salaries, if any, are a matter of agreement between
the Department and the individual, and are fixed at an annual, monthly, per
diem, or when-actually-employed rate. Under the appropriate circumstances,
a private attorney may receive a Special Assistant appointment pursuant to
28 U.S.C. Sec. 543, with or without compensation, to assist the United
States Attorney with specific matters. Such appointments raise ethics and
conflict of interest issues that must be addressed. To appoint private
attorneys as Special Assistant United States Attorneys pursuant to 28 USC
Section 543, compensated or not, approval is required by EOUSA.
Attorneys employed in other departments or agencies of the federal
government may be appointed as Special Assistants to United States
Attorneys, without compensation other than that paid by their own agency, to
assist in the trial or presentation or cases when their services and
assistance are needed. Such appointments, and appointments of Assistant
United States Attorneys from one United States Attorney's office to another,
may be made by the United States Attorney requiring their services.
In instances where an entire United States Attorney's Office
recuses itself, the Attorney General may, pursuant to 28 U.S.C. Sec. 515,
appoint any officer of the Department of Justice, or any attorney specially
appointed under law, to conduct any kind of legal proceeding which United
States Attorneys are authorized by law to conduct, whether or not such
appointee is a resident of the district in which the proceeding is brought.
Said appointee specially retained under authority of the Department of
Justice is appointed as a Special Assistant or a Special Attorney to the
Attorney General and reports directly to the Attorney General or delegee.
Such appointments are executed by the Executive Office for United States
Attorneys.
3-2.400
Division of Responsibility
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The division of responsibility in the Department of Justice between the
offices of the United States Attorneys and the legal divisions is determined
by statutes, Code of Federal Regulations provisions, Attorney General and
Deputy Attorney General directives, and actual practice. It is also
extensively discussed in the Manual's various titles.
3-2.500
History of the Attorney General's Advisory Committee of United
States Attorneys (AGAC)
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Attorney General Elliott Richardson announced the creation of an Advisory
Committee of United States Attorneys on September 20, 1973. By order dated
February 13, 1976, Attorney General Edward Levi institutionalized the
Committee and had its existence and responsibilities set forth in 28 C.F.R.,
Section 0.10. By order dated September 4, 2009, Attorney General Eric H.
Holder, Jr., amended 28 C.F.R. Section 0.10, to clarify existing practices
of the AGAC that have evolved through the years.
[updated October 2009]
3-2.520
Members
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The AGAC consists of an appropriate number of United States Attorneys
selected by the Attorney General. The United States Attorney for the
District of Columbia serves as an ex officio member. The Attorney
General may designate additional personnel from the United States Attorneys'
offices to serve as members of the AGAC. The Attorney General also selects
a chair and vice chair of the AGAC.
AGAC members are intended to represent office size, judicial district,
issues and diversity. Service on the AGAC normally does not exceed three
years. New members are appointed each year to provide for broad
representation of United States Attorneys nationwide.
[updated October 2009]
3-2.530
Functions
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The AGAC has two functions. It gives United States
Attorneys a voice in Department policies and advises the Attorney General of
the United States.
In advising the Attorney General, the Committee conducts studies
and makes recommendations to improve management of United States Attorney
operations and the relationship between the Department and the federal
prosecutors. It also helps formulate new programs for improvement of the
criminal justice system and the delivery of legal services at all levels.
In serving the United States Attorneys, the Committee coordinates
the collective efforts of the United States Attorneys with the divisions and
agencies of the Department of Justice, and departments and agencies external
to the Department of Justice. It also represents the United States
Attorneys with the Department of Justice, other departments and agencies of
the government, and occasionally private organizations.
[updated October 2009]
3-2.540
Subcommittees
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The Attorney General establishes such subcommittees as are deemed
necessary to carry out the AGAC's functions. In consultation with the
Director, EOUSA, the AGAC selects chairs for the subcommittees.
United States Attorneys who are not members of the AGAC may serve
on its subcommittees and working groups.
[updated October 2009]
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