Thread by @BurnhamDC

The district judges in New Jersey are thinking about replacing @realdonaldtrump’s chosen US Attorney—@USAttyHabba—with someone the judges choose under a statute purporting to give them that power. But if the judges attempt that move, it should fail. Here’s why. 1/

First the basics. Article II vests all executive power in the President. That includes the prosecution power of U.S. Attorneys. For @POTUS to properly exercise that power, he must be able to freely hire and fire all subordinates who wield it. 2/

As Chief Justice Taft—a former @POTUS himself—wrote in Myers: “The President, alone and unaided, could not execute the laws. He must execute them by the assistance of subordinates.” Again, that includes US Attorneys. 3/

Ok lets get to New Jersey. There is a statute that allows the Attorney General to appoint US Attorneys directly—appointments last 120 days. @AGPamBondi appointed @USAttyHabba under this provision. 4/

The same statute says if there is no senate-confirmed US Attorney after 120 days, then “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.” 28 USC 546(d). Wait what? The judges pick their own prosecutor? 5/

I am not aware of a modern example of courts exercising this supposed power to install a US Attorney, but @realDonaldTrump could plainly remove any such person immediately pursuant to Article II. That issue would (or should) be 9-0 at the Supreme Court. 6/

But what about @USAttyHabba? @realdonaldtrump is entitled to keep her in office for as long as he wants. The simplest path would be for @AGPamBondi to appoint @USAttyHabba the “First Assistant United States Attorney” in New Jersey. Then, under a different statute (the Federal Vacancies Act), @USAttyHabba would again be Acting U.S. Attorney (now via her status as the "first assistant" to that role). 7/

The @thejusticedept knows this, as they recently did the same in the Northern District of New York @NDNYnews for John Sarcone—another US Attorney whom @AGPamBondi appointed and whom the Administration is entitled to keep. 8/

wxxinews.org/new-york-publi…

Or if @TheJusticeDept really wanted to underscore the point, @realdonaldtrump could remove the judges' selected US Attorney and @AGPamBondi could potentially reappoint @USAttyHabba under the same AG Appt statute used before. Nothing in the statute clearly precludes this.  9/

Bottom line: @POTUS has broad authority over @TheJusticeDept and who serves in it. That includes US Attorneys. There is this a clear legal path to keep @USAttyHabba in office if the Administration wants to take it. /fin