Sen. Mike Lee, R-Utah, introduced legislation Thursday that would prohibit district judges from appointing interim U.S. attorneys if the 120-day term of the person appointed by the president expires.
The executive and judiciary branches recently clashed after Alina Habba, President Donald Trump's pick as interim U.S. attorney for New Jersey, was replaced by a panel of federal judges in that state after her 120-day term expired without her being confirmed by the Senate.
Trump withdrew her nomination in a move that allowed her to remain in the position in an acting capacity. The judges had named Desiree Leigh Grace, Habba's deputy, as the interim U.S. attorney.
"My bill restores the President's ability to choose acting U.S. Attorneys," Lee, a member of the Senate Judiciary Committee, posted on X. "Judges shouldn't be able to pick who argues cases before them, just as the White House can't name their law clerks. It's time we restored this prerogative to the leader of the Executive Branch.”
Article II of the Constitution grants the president authority to select "officers of the United States," with U.S. attorneys considered such officers with Senate confirmation. The authority was codified in 1966 by 28 USC § 541, which allows the president to appoint, with advice and consent of the Senate, a U.S. attorney for each judicial district to serve a four-year term.
In 1986, Congress added two subsections in Section 546 of 28 USC § covering the 120-day term, and should such a term expire without Senate confirmation, the district court "may appoint a United States attorney to serve until the vacancy is filled." It was struck by Congress when it reauthorized the Patriot Act in 2006, but Democrats restored it in 2007.
Lee's legislation would strike the subsections regarding the 120-day limit, replacing it with: "A person appointed as United States attorney under this section may serve until the qualification of a United States attorney for such district appointed by the President under Section 541 of this title."
"This shift of appointment authority away from the executive branch to the courts creates a conflict of interest, weakening the separation of powers by allowing courts to select their own interim U.S. attorneys," Lee's office said in a news release. "Sen. Lee's legislation will correct this miscarriage of justice by restoring the authority to make U.S. attorney appointments to the executive branch."
Newsmax reached out to the White House for comment.
Michael Katz ✉
Michael Katz is a Newsmax reporter with more than 30 years of experience reporting and editing on news, culture, and politics.
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