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President Donald Trump has the constitutional authority to fire court-appointed U.S. attorneys, even if judges legally appointed them, according to former Justice Department official John Yoo, who said the Constitution gives the president broad removal power over executive branch officers.
“Otherwise you could have U.S. attorneys who are enforcing federal law differently than the president would, and it’s the president who all of us in the country elect, and to whom the president is accountable,” Yoo told Fox News Digital in an interview.
Trump exercised that power this week by terminating Donald Kinsella just hours after federal judges in the Northern District of New York voted to install him to fill the vacancy left by Trump appointee John Sarcone, whose temporary term had expired.
Deputy Attorney General Todd Blanche revealed the move in a fiery social media post, declaring that judges “don’t pick” U.S. attorneys and thrusting the fight deeper into a constitutional dispute over who ultimately controls them.
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At the center of the most recent dispute is a law that allows federal courts to appoint temporary U.S. attorneys when a presidential nominee has not been confirmed by the Senate and an acting official’s term has expired. Blanche suggested the court’s move to fill a U.S. attorney vacancy was unconstitutional, a comment that comes as the DOJ appeals Judge Lorna Schofield’s decision last month to disqualify Sarcone over his expired tenure.
But Yoo, a law professor at Univrsity of California, Berkeley, said both that the judges’ actions were legal due to a “quirk” in the law and that the president still has authority to fire Kinsella.
“No matter how an executive officer is appointed … none of these positions under the Constitution have any specific way to remove the officers, and so the president can remove all officers in the executive branch, particularly all officers in the Justice Department,” Yoo said.
Yoo said the Constitution lays out detailed processes for appointing U.S. attorneys but is “silent” on how they are removed.
“It has elaborate procedures … about how you appoint them to office. It doesn’t actually discuss at all how you remove them from office,” Yoo said, referencing the complex federal vacancy laws that govern how interim and acting U.S. attorneys are appointed.
He noted that existing law and Supreme Court precedent have long given the president the ultimate power to fire inferior officers in the executive branch, meaning an official like the attorney general cannot remove the appointees chosen by the courts, such as Kinsella, but Trump can.
Kinsella did not respond to a request for comment on his termination.
Under the law, U.S. attorneys are nominated by the president and confirmed by the Senate. But if the Senate does not act, the president can install a temporary U.S. attorney for a limited period, typically 120 days. If that term expires without confirmation of a nominee, the law gives the district court’s judges the power to appoint a replacement to avoid a vacancy in the office.
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Trump, for his part, has struggled to secure Senate confirmations of his U.S. attorney nominees in blue states, where the upper chamber’s blue slip tradition has meant that home state senators must greenlight his nominees.
His interim appointees in these states, including in New York, California, Nevada, New Jersey and Virginia, have faced legal setbacks as federal judges have uniformly found that Trump cannot repeatedly reappoint the same person to consecutive temporary terms.
Senate Minority Leader Chuck Schumer, D-N.Y., has ruled out approving any of Trump’s nominees in New York, for example. After Trump fired Kinsella, a veteran federal prosecutor, Schumer said in a statement the president wanted an unqualified “political loyalist” in office.
“Everyone knows Trump only cares about one quality in a U.S. Attorney: complete political subservience,” Schumer said.
In New Jersey, Trump quickly fired a court-appointed U.S. attorney after a lower court found Alina Habba’s temporary term had expired. The U.S. Court of Appeals for the 3rd Circuit upheld the lower court’s finding that Habba was unlawfully serving.
In the Eastern District of Virginia, the top prosecutor role also remains in limbo as the DOJ appeals a judge’s decision to disqualify Lindsey Halligan, who brought high-profile indictments against New York Attorney General Letitia James and former FBI Director James Comey. The judge tossed out those cases, finding Halligan was improperly appointed.
The Trump DOJ used a variety of loopholes in the law to install Sarcone, Habba, Halligan and others, and has argued in appeals that the judges disqualifying them — and replacing them with U.S. attorneys of the court’s choosing — were misreading the law.
“It is important that a DOJ component is overseen by someone who has the support of the Executive Branch, and that a U.S. Attorney’s Office can continue to function even when there is no Senate-confirmed or interim U.S. Attorney,” DOJ attorneys wrote in court papers in Habba’s case.
Yoo signaled that the courts were right to honor the statutory time constraints on acting and interm tenures, but he reiterated that Trump had sole removal power.
From the founding, he said, officers who enforce federal law have been removable at will by the president under Article II of the Constitution and the take care clause, that is, the duty to “take care that the laws be faithfully executed.”
“Any subordinates who are carrying out federal law have to be accountable to him,” Yoo said.
The DOJ has not at this stage elevated any of the U.S. attorney cases to the Supreme Court. Habba’s case is the furthest along, and a spokesperson did not respond to a request for comment on whether the DOJ would appeal that decision.
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