The United States Attorneys serve as the nation's principal litigators under the direction of the Attorney General. There are 93 United States Attorneys stationed throughout the United States, Puerto Rico, the Virgin Islands, Guam and the Northern Mariana Islands. United States Attorneys are appointed by, and serve at the discretion of, the President of the United States, with advice and consent of the United States Senate. One United States Attorney is assigned to each of the judicial districts, with the exception of Guam and the Northern Mariana Islands where a single United States Attorney serves in both districts. Each United States Attorney is the chief federal law enforcement officer of the United States within his or her particular jurisdiction.
United States Attorneys conduct most of the trial work in which the United States is a party. The United States Attorneys have three statutory responsibilities under Title 28, Section 547 of the United States Code:
- the prosecution of criminal cases brought by the Federal government;
- the prosecution and defense of civil cases in which the United States is a party; and,
- the collection of debts owed the Federal government which are administratively uncollectible.
Although the distribution of caseload varies between districts, each handles a mixture of simple and complex litigation. Each United States Attorney exercises wide discretion in the use of his/her resources to further the priorities of the local jurisdictions and needs of their communities.
The office of the United States Attorney was created by the Judiciary Act of 1789 – the act subjected to the first judicial review by the Supreme Court of the United States in Marbury v. Madison. The Judiciary Act of 1789 included clauses establishing multiple parts of the modern federal judiciary:
- set the size of the Supreme Court at six
- defined cases over which that the Supreme Court would have original and appellate jurisdiction
- created thirteen judicial districts – one for each state that had ratified the Constitution, except for Massachusetts and Virginia which were given two judicial districts each; Massachusetts was given the district of Massachusetts and the district of Maine (then a part of Massachusetts); the district of Virginia and the district of Kentucky (then a part of Virginia)
- created the office of the Attorney General
- called for a United States Attorney and United States Marshal for each judicial district
- granted the Supreme Court the power to issue writs of mandamus outside its appellate jurisdiction – the section of the act declared unconstitutional in Marbury v. Madison
The office of the United States Attorney is older than the executive department that it now falls under, the Department of Justice – which began operations on July 1, 1870. Before the creation of the Department of Justice, and subsequently the creation of the Executive Office for United States Attorneys, United States Attorneys were independent of the Attorney General.
Historically, United States Attorneys were referred to as United States District Attorneys. The duties of the United States Attorney are set forth in 28 USC § 547, within the district the United States Attorney shall:
- prosecute all offenses against the United States
- prosecute or defend, for the Government, all civil actions, suits or proceedings in which the United States is concerned
- appear on behalf of the defendants in all civil actions, suits or proceedings pending in the district against collectors, or other offices of the revenue of customs for any act done by them, or for the recovery of any money exacted by or paid to these officers, and by them paid in to the Treasury
- institute and prosecute proceedings for the collection of fines, penalties, and forfeitures incurred for violation of any revenue law, unless satisfied on investigation that justice does not require the proceedings
- make such reports as the Attorney General may direct
From a single United States Attorney who worked part-time and maintained a private practice, the office became full-time and has subsequently morphed into a supervisory role over a staff of Assistant United States Attorneys that number into the hundreds in some districts. Today there are 94 federal district courts, and 93 United States Attorneys. This is quite a growth over the past 221 years and corresponds to the awe-inspiring growth of the United States from the original thirteen states to the fifty states that now comprise the United States of America.
In 1935, Supreme Court Justice George Sutherland defined the roll of United States Attorney in Berger v. United States, 295 U.S. 88 (1935):
"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereign whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interests, therefore, in a criminal prosecution is not that it shall win a case, but that justice be done. As such he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed he should do so, but, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."
United States Attorneys are nominated by the President and are confirmed by the United States Senate. The term of United States Attorneys is set at four years which may be renewed. As a presidential appointment, United States Attorneys are said to “serve at the pleasure of the President.” United States Attorneys ensure the investigative efforts of federal law enforcement agencies are pursued and violations of federal criminal law are prosecuted. They also serve as the advocates and defenders of the United States government in civil lawsuits. United States Attorneys generally receive matters when federal court litigation is involved or contemplated.