|3-2.100||United States Attorneys|
|3-2.150||Absence from Office—Acting United States Attorney|
|3-2.160||Vacancy in Office—Appointments|
|3-2.200||Assistant United States Attorneys|
|3-2.400||Division of Responsibility|
|3-2.500||History of the Attorney General's Advisory Committee of United States Attorneys (AGAC)|
3-2.100 - United States Attorneys
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
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
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
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
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
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.
3-2.160 - Vacancy in Office—Appointments
Title 5, United States Code, Section 3345(a)(1) provides that the First Assistant United States Attorney shall serve as the Acting United States Attorney when a Presidentially-appointed United States Attorney either dies, resigns, or is unable to serve. The First Assistant United States Attorney generally may not serve in that acting capacity for more than 210 days beginning on the date the vacancy occurs, but the President’s submission of a nomination for the office to the Senate may, depending on the circumstances, extend the period of the acting officer’s service. See 5 U.S.C. § 3346.
Title 28, United States Code, Section 546 authorizes the Attorney General to appoint a United States Attorney on an interim basis for the district in which the office of the United States Attorney is vacant. An individual appointed by the Attorney General to serve as the United States Attorney may serve either until a Presidential appointment pursuant to 28 U.S.C. § 541 takes effect, or for a period of 120 days after appointment by the Attorney General, whichever occurs earlier. If the Attorney General’s appointment expires without a Presidential appointment, the district court may appoint a United States Attorney until the vacancy is filled. See 28 U.S.C. § 546(d).
Section 3345 and Section 546 operate independently. Accordingly, senior officials in the Office of the Attorney General, the Office of the Deputy Attorney General, and EOUSA will determine whether to recommend that the Attorney General appoint a United States Attorney pursuant to Section 546 or whether the First Assistant United States Attorney will automatically serve as the Acting United States Attorney by operation of Section 3345(a)(1). An Acting United States Attorney serving pursuant to Section 3345 may receive a subsequent appointment by the Attorney General or the district court pursuant to Section 546.
3-2.170 - Recusals
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 his or her recusal or that 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).
3-2.200 - Assistant United States Attorneys
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
3-2.220 - Recusals
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
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
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)
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.
3-2.520 - Members
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.
3-2.530 - Functions
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.
3-2.540 - Subcommittees
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]