The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge
The Defendant, Mr. Antoine Baker, moves the Court pursuant to the All Writs Act and the Declaratory Judgment Statute to declare the Attorney General's appointment of Mr. Tim Griffin to serve as U.S. Attorney for the Eastern District of Arkansas "unconstitutional under U.S. Const., Art. II, § 2, cl. 2-3, or violating 28 U.S.C. § 541(a-b), or both."*fn1 In addition, the Defendant contends the position of the United States Attorney "is a Presidential appointment not an Attorney General's appointment."*fn2
The Defendant, Mr. Baker, is charged in this case with federal capital murder. The Superseding Indictment filed August 9, 2006, alleges a capital crime with aggravating circumstances. The original Indictment and the First Superseding Indictment filed August 9, 2006, were handed down by a grand jury during the tenure of Mr. Bud Cummins, the United States Attorney for the Eastern District of Arkansas. On December 20, 2006, Mr. Cummins resigned, thereby creating a vacancy in the office, and on the same day the Attorney General, Alberto Gonzales, appointed Mr. Griffin as Interim United States Attorney. As of the time of this opinion, Mr. Griffin's name has not been submitted to the Senate. Nevertheless, the Government's Response states, "As the Attorney General has made clear, however, the Executive Branch is committed to having a Senate-confirmed United States Attorney for all 94 federal districts, and there is every intention of submitting a name for this United States Attorney position to the Senate for confirmation."*fn3
On February 7, 2007, a Second Superseding Indictment was handed down by the Grand Jury and notice thereof submitted pursuant to 18 U.S.C. § 3593(a).*fn4
The original Indictment filed February 8, 2006, was signed by the Foreperson of the Grand Jury and also by Assistant U.S. Attorney, Patrick Harris. The First Superseding Indictment was filed August 9, 2006. It also was signed by the Foreperson and Mr. Harris. Both were filed during Mr. Cummins' tenure and the signature line for the government's attorney shows Mr. Cummins' name as the then United States Attorney, but was signed only by Mr. Harris for the Government. The Second Superseding Indictment was filed on February 9, 2007.
Again, it was signed by the Foreperson and by Mr. Harris under Mr. Griffin's name, who by that date was serving as Interim U.S. Attorney. It appears that the case is proceeding under the direction of Mr. Harris.*fn5
The Defendant does not challenge the original Indictment or the First Superseding Indictment. However, he challenges the Second Superseding Indictment issued during the tenure of the Interim United States Attorney, Mr. Griffin.*fn6
In his original motion, Defendant states his position as follows:
Griffin is the United States Attorney for the Eastern District of Arkansas and his name has not been, and likely will never be, submitted to the United States Senate for "advice and consent" as required by Art. II, § 2, cl.2 (with cl.3, collectively the "Presidential Appointments Clauses", quoted in ¶ 22, infra). Therefore, his appointment by the Attorney General, albeit under 28 U.S.C. § 546(c), as amended in March 2006, still does not obviate application of 28 U.S.C. § 541(a), and it violates the Presidential Appointments Clause of Art. II of the Constitution. Therefore, he cannot hold the office of U.S. Attorney.
Defendant takes three related approaches: First, even considering § 546(c) as an attempted "end run" around the Presidential Appointments Clauses, defendant submits that § 541(c) must still control to prevent an obvious absurdity enabled by the law, and Mr. Griffin's name still has to be submitted to the Senate. Second, the failure or refusal to submit his names means he holds his office in violation of the Presidential Appointments Clauses. Third, under the Constitution, only the President can appoint a U.S. Attorney, not the Attorney General, so this appointment is void.*fn7
The Court concludes that Defendant does not have Article III standing to challenge the legality of Mr. Griffin's appointment; that 28 U.S.C. § 546 is not facially unconstitutional; and that his "as applied" challenge is not ripe for review. Ordinarily, the conclusion that Defendant lacks standing would make it unnecessary for the Court to reach and deal with the underlying constitutional questions. Nevertheless, out of an abundance of caution and in light of Defendant's status as one charged with a capital crime and who therefore may face the death penalty, the Court will address the constitutional issues raised by the Defendant.
The Defendant contends that he has Article III standing to raise this issue because the federal government is seeking to take his life, "and an illegally appointed United States Attorney . . . will be involved in this case."*fn8 He attacks the constitutionality of 28 U.S.C. § 546(a-c) stating, "Because § 546(c) permits the Attorney General to appoint a U.S. Attorney [it] is unconstitutional under Article II, § 2, cl. 2."*fn9
That appointment was plainly lawful, and Defendant's arguments to the contrary lack merit. It cannot be disputed that Mr. Griffin's appointment was expressly authorized by section 546. The appointment was also entirely Constitutional. Because United States Attorneys are "inferior officers," the Appointments Clause of the Constitution expressly permits Congress to vest their appointment in the Attorney General, and does not require the advice and consent of the Senate before they may be appointed. And Mr. Griffin's interim appointment does not in any way undermine the President's power under the Recess Appointments Clause, because the President remains free to effect the removal of Mr. Griffin, like any interim United States Attorney, and thereafter to make a recess appointment (assuming such an appointment is otherwise permissible). Mr. Griffin's appointment pursuant to Section 546 therefore does not inhibit the President's power under the Recess Appointments Clause in any manner.
The Attorney General's appointment of Mr. Griffin was therefore plainly lawful. But this Court need not reach that question because Defendant's motion fails for an entirely independent reason: It is well-established that a court cannot dismiss an indictment issued under a United States Attorney whose appointment was allegedly infirm. See, e.g., United States v. Gantt, 194 F.3d 987, 998 (9th Cir. 1999). Thus, even if Mr. Griffin's appointment were improper (it is not), under well-settled authority Defendant is not entitled to have the indictment dismissed..*fn10
The Government argues that the Defendant has no standing to challenge Mr. Griffin's appointment as Interim U.S. Attorney because none of his rights as the Defendant in this criminal case are compromised or adversely affected by that appointment. The law does not require U.S. Attorneys to sign indictments in any criminal case, capital or otherwise. The law simply requires that the indictment must be signed "by an attorney for the government." See Fed. R. Crim. P. 7(c)(1). Furthermore, all U.S. Attorneys are subject to the direction of the Attorney General, and this authority is nowhere more clearly apparent than in the processing of capital cases that permit the government to seek the death penalty, as here. Indeed, the Defendant's own motion cites many of the provisions of the U.S. Attorney's Manual which clearly spell this out.*fn11 The Defendant likewise notes the case of U.S. v. Lee, 274 F.3d 485 (8th Cir. 2001), which arose in this Court, and made it clear that accused defendants have no enforceable rights based upon the Department of Justice's in-house death penalty protocols.
The Defendant states that "[t]his is not a motion to dismiss the indictment or prevent the prosecution, except to attempt to prevent application for the death penalty by an unauthorized U.S. Attorney."*fn12 But nothing prevents an Assistant U.S. Attorney from making the necessary preliminary communications to the Attorney General when it must be recognized that, in any event, the Attorney General, or in some cases, the Deputy Attorney General, has the final say when deciding whether to seek the death penalty or when to permit the government's attorney to withdraw a death penalty request previously authorized.*fn13
From the filing of the First Superseding Indictment on August 9, 2006, the predicate for seeking the death penalty had been established. And, the Department of Justice rules require in such circumstances, that the death penalty issue be submitted to the Attorney General for his final decision whether the U.S. Attorney desires to seek, or not to seek, the death penalty. Indeed, the Attorney General, and in his absence, the Deputy Attorney General, can require the U.S. Attorney to seek the death penalty or to continue to pursue same, even when that U.S. Attorney disagrees.*fn14
So, the identity of the U.S. Attorney or Interim U.S. Attorney for the Eastern District of Arkansas has no effect on any death penalty decision that may be made in his case. Nor does it affect any of his other rights as the Defendant in this case.
In United States v. Suescun, 237 F.3d 1284, 1287-88 (11th Cir. 2001), the court stated:
A district court lacks jurisdiction to entertain a criminal case if it appears that the Government "lacked power to prosecute the defendant." United States v. Fitzhugh, 78 F.3d 1326, 1330 (8th Cir. 1996). An appointment of a United States Attorney that is not made as provided by the Appointments Clause does not affect the Government's power to prosecute. In Fitzhugh, for example, the Eighth Circuit held that an indictment obtained by an Independent Counsel who may have exceeded his authority did not affect the government's power to prosecute and thus did not deprive the district court of jurisdiction. Id.; accord United States v. Easton, 937 F.2d 160, 162 (5th Cir. 1991) (holding that the district court's jurisdiction was not affected even though the assistant United States Attorney who signed the indictment had been directed to do so by a United States Attorney who was disqualified to participate in the prosecution of the case); United States v. Coppola, 526 F.2d 764, 772-73 (10th Cir. 1975) (implying that the presence of a Department of Justice "special attorney" in the grand jury room, in violation of Fed.R.Crim.P. 6(d), did not raise a jurisdictional issue). In sum, even if we were to assume that Keefer's appointment as temporary United States Attorney was invalid - because it was not made in conformance with the Appointments Clause -- we conclude that the appointment did not deprive the district court of jurisdiction to entertain the case and to adjudicate Suescun guilty of the charged offenses.
Furthermore, a declaration that 28, U.S.C. § 546(c), as amended in 2006, is unconstitutional and invalid would not affect the legality of Mr. Griffin's appointment because in that event his appointment would be authorized by the prior version of that law. If § 546, as enacted in 2006, were held to be unconstitutional, as contended by the Defendant, then the pre- 2006 version would automatically be in effect and control the appointment of "interim" U.S. Attorneys. See 1 Norman J. Singer, Effects of Holding Legislation Invalid, Sutherland Statutory Construction § 2:7 (6th ed. 2006) and cases cited therein. See, e.g., State Ex Rel Burns v. Steely, 600 P.2d 367, 368-69 (Okla. Crim App. 1979) ("An unconstitutional act designed to amend or supercede an existing law does not repeal or change the former valid act but leaves it in full force and effect."); Boling v. State, 74 Wash. 2d 82, 89 (Wash. 1968) ("The elementary rule of statutory construction is without exception that a void act cannot operate to repeal a valid existing statute and the law remains in full force and operation as if the repeal had never been attempted.")
The result: Mr. Griffin's appointment by the Attorney General would still be valid and in effect until 120 days after December 20, 2006, that is until April 19, 2007. Therefore, the filing of the Second Superseding Indictment in February 2007 would have been made during the tenure of a validly appointed interim U.S. Attorney.
Finally, the appointment of Mr. Griffin does not violate the Recess Appointment Clause, Art. II, § 2, cl. 3. The Recess Appointment power is in the President, not the Attorney General, whereas the Attorney General has the power to make interim appointments. It is true that a recess appointment depends upon the existence of a vacancy. But even assuming that an interim appointment has been made by the Attorney General and there is, therefore, no vacancy, the power of the President to make a recess appointment is not affected. The Court agrees with the following analysis made by the Government:
Assuming arguendo that, following the appointment of an interim United States Attorney, there is no longer a "vacancy" as that term is used in the Recess Appointments Clause, it has long been established that the President may exercise the Recess Appointments power by first effecting the removal of the interim United States Attorney, and then making a recess appointment. Examining section 541(c), which authorizes the President to remove "each" United States Attorney, the court in Solomon held that Congress conferred upon the President the authority to remove any United States Attorney without regard to the manner in which s/he was appointed. 216 F. Supp. at 843; see 3 Op. Off. Legal Counsel 448 (1979) (opining that when Congress acts under its Constitutional authority to vest the power of appointing inferior officers in the President, heads of departments, or the courts, it can also regulate the manner for the removal of those officers appointed by department heads or the courts, and adopting statutory construction analysis employed by court in Solomon to conclude that President has power to remove ...