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For all those words, the niggling constitutional problem that the good professor doesn't address is the fact that such an interpretation would render the Appointments Clause meaningless, as the president could effectively avoid Senate confirmation permanently by just renewing the appointments every 120 days. But there's a larger practical problem; if court appointments are unconstitutional, as he says they are, then any US Attorney who has been so appointed does not have the authority of the office. At present, this is the vast majority of US Attorneys in the country. If the Supreme Court rules as the good professor wants them to, do you think that being forced to vacate nearly every Federal indictment since this summer (and a lot of rulings on cases that were indicted before them) is a good tradeoff to confirm the authority of fucking Lindsey Halligan?
It is a vexing problem. But rendering something arguably deadwood appears better than just creating out of whole cloth a power that doesn’t exist.
Of course, there is nuance to this debate. Trump is of course happy to bring his AUSA up for a vote. Probably would pass given R majority. The key missing point is that the Dems are blocking due to Senate custom.
So what you want is a situation where the power of executive is removed from the president and granted to a judge in a situation where a minority of Senators block advice and consent. That makes less than zero sense in the context of Art II, Art III, and the nature of advice and consent.
So I think you have it pretty much backwards. Yes there is a risk on a president abusing the provision, but there is also a risk of a minority in the senate abusing the provision if your read is correct. It seems like the right way to think of this is if the president is willing to put forth a candidate but the senate refuses to vote, then the president can make that person an interim AUSA. If the Senate votes and refuses consent, then the president has to start again.
This avoids the pitfall you are worried about without upending the entire constitutional order and again policing bad actors in the senate.
And this is about more than the authority of a single AUSA. This is a question of who controls the executive.
Finally, do you have a citation for most indictments being brought by court appointed AUSAs?
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