28 U.S.C. § 541 is the statute that puts U.S. Attorneys in office and takes them out. It authorizes the President to appoint a U.S. Attorney for each of the 94 federal judicial districts, subject to Senate confirmation; sets a four-year term; and gives the President unrestricted power to remove any U.S. Attorney at any time.1Office of the Law Revision Counsel. 28 USC 541 – United States Attorneys Those three pieces — appointment, term, and removal — sit in a single short section, and everything else about how the office turns over flows from them.
Appointment by the President With Senate Confirmation
Section 541(a) makes the appointment power presidential and the confirmation power senatorial. The President nominates, the Senate confirms by simple majority, and the President then issues a commission. The requirement tracks the Appointments Clause of Article II, which calls for Senate advice and consent on principal federal officers.2Cornell Law School. Process of Appointment for Principal Officers
Nominations first move through the Senate Judiciary Committee, which reviews the nominee before sending the name to the floor. Opposition senators sometimes delay or block nominations over policy disagreements, and gridlock can leave a district without a confirmed U.S. Attorney for months.
One informal custom shapes the process more than the statute lets on: the blue slip. The Judiciary Committee sends a literal blue piece of paper to the nominee’s home-state senators asking whether they support the nomination. If a home-state senator returns a negative blue slip or refuses to return one, the committee chair has historically declined to schedule a hearing. The practice has no statutory basis, and chairs have applied it with varying strictness, but it gives home-state senators real leverage over who becomes their district’s chief federal prosecutor, even when they belong to the opposing party.
Section 541 itself sets no qualifications for the job. In practice, nominees are experienced attorneys, often former Assistant U.S. Attorneys, state prosecutors, or senior federal agency lawyers. A separate statute, 28 U.S.C. § 544, requires each U.S. Attorney to take an oath faithfully to execute the duties of the office before beginning work.3Office of the Law Revision Counsel. 28 USC 544 – Oath of Office
The Four-Year Term and the Holdover Clause
Section 541(b) fixes the term at four years. It also does something people often miss. When the term ends, the U.S. Attorney does not automatically leave. The holdover clause provides that the officeholder continues performing the duties of the office until a successor is appointed and qualifies. A U.S. Attorney whose four-year term expired years ago can still lawfully serve if the President has not nominated a replacement or the Senate has not confirmed one.
This matters most during presidential transitions and periods of Senate gridlock. A U.S. Attorney appointed by one president can remain in office well into the next administration if the incoming president is slow to nominate replacements or if confirmations stall. In some districts, holdover service has run for extended periods, leaving a prosecutor appointed by the prior administration in charge of the office.
Removal at the President’s Discretion
Section 541(c) is blunt: each U.S. Attorney is subject to removal by the President. No reason is required, no process is owed, and no advance notice is necessary. Federal judges hold their positions during “good behavior” under Article III; U.S. Attorneys do not. They are executive branch officials who serve entirely at presidential discretion.
The Supreme Court confirmed the breadth of the removal power in Myers v. United States, holding that the President’s constitutional duty to see that the laws are faithfully executed requires the power to remove executive officers.4Justia. Myers v United States, 272 US 52 (1926) New administrations routinely ask sitting U.S. Attorneys to resign after a change in party control, and that practice has continued under presidents of both parties for generations.
What draws scrutiny is not removal itself but the circumstances around it. When nine U.S. Attorneys were fired during the George W. Bush administration in 2006, congressional investigations followed because some of the removals appeared linked to ongoing investigations or to prosecutors’ refusal to pursue politically favored cases. Congress cannot prevent a president from firing a U.S. Attorney, but it can investigate whether a removal was intended to interfere with a specific prosecution.
What Happens When the Office Is Vacant
Because § 541 sets no ceiling on how long a nomination can take, vacancies are common, and two separate federal statutes fill the gap.
Attorney General Appointment Under Section 546
Under 28 U.S.C. § 546, the Attorney General may appoint a replacement who serves as a fully empowered U.S. Attorney, not merely an acting one, for up to 120 days. If no permanent appointment is made in that window, the federal district court for the district may appoint a U.S. Attorney to serve until the President fills the position through the normal nomination and confirmation process.5Office of the Law Revision Counsel. 28 USC 546 – Vacancies The court appointment authority is a rarely used backstop that prevents a district from having no U.S. Attorney at all when the political branches cannot agree.
The Federal Vacancies Reform Act
The Federal Vacancies Reform Act, codified at 5 U.S.C. §§ 3345–3349d, provides a separate mechanism. Under the FVRA, the “first assistant” to the U.S. Attorney (typically the First Assistant U.S. Attorney) automatically becomes the acting officer when the position becomes vacant, or the President may designate a different senior official.6Office of the Law Revision Counsel. 5 USC 3345 – Acting Officer The FVRA generally allows acting service for 210 days from the date the vacancy occurs.
The Department of Justice has taken the position that these two statutes operate independently and can be used in sequence for the same vacancy.7Department of Justice. Temporary Filling of Vacancies in the Office of United States Attorney Because § 546 creates a fully empowered U.S. Attorney rather than an acting one, it falls outside the FVRA’s exclusivity provision, which governs only acting officials. An Attorney General appointee under § 546 can replace an acting U.S. Attorney serving under the FVRA, and the two clocks — 210 days under the FVRA and 120 days under § 546 — run independently.
Recess Appointments
The President also has the constitutional power to make recess appointments, filling a vacancy without Senate confirmation while the Senate is in recess. A recess-appointed U.S. Attorney serves until the end of the Senate’s next session. The Supreme Court narrowed this power sharply in NLRB v. Noel Canning, holding that a Senate recess of fewer than ten days is “presumptively too short” to trigger the appointment power, and that a break of three days or less is categorically too short.8Justia. NLRB v Noel Canning, 573 US 513 (2014) Because the Senate can prevent recess appointments by holding brief pro forma sessions every few days, the power has become difficult to exercise in practice.
Where the Officeholder Must Live
Section 541 puts a person in office; a companion statute, 28 U.S.C. § 545, tells them where to live. A U.S. Attorney must reside in the district where they are appointed, with narrow exceptions.9Office of the Law Revision Counsel. 28 USC 545 – Residence The U.S. Attorneys for the District of Columbia, the Southern District of New York, and the Eastern District of New York may live within 20 miles of their districts rather than inside them. A separate exception exists for the Northern Mariana Islands, where the same person may serve simultaneously as U.S. Attorney for another district without meeting the residency requirement for both. The Attorney General can also waive the residency rule by order for a specific, renewable period.