Suspension of a United States Marshal
W ith th e p rio r ap p ro v a l o f th e P resid e n t, the A tto rn e y G e n e ra l m ay s u sp e n d a U n ite d S ta te s M arsh a l
w ith o u t pay.
D u rin g the p e rio d o f a U n ite d S tates M arsh a l’s s u sp e n sio n , the A tto rn e y G e n eral m ay d e sig n a te an
A c tin g U n ited S ta te s M arsh a l to carry o u t the d u tie s o f th e o ffice.
Septem ber 23, 1993
M e m o r a n d u m O p in io n f o r t h e
A s s o c ia t e D e p u t y A t t o r n e y G e n e r a l
This memorandum will confirm oral advice, given to the Deputy Attorney Gen
eral and to the M arshals Service, that the Attorney General has the power to sus
pend a United States Marshal without pay, with the President’s prior approval. She
may also designate an Acting United States Marshal during the period o f the
United States M arshal’s suspension.
This Office has concluded repeatedly that the Attorney General may suspend a
United States Marshal without pay, provided that she has the prior approval o f the
President.1 The President’s power to appoint a United States Marshal entails the
power to remove him. See 28 U.S.C. § 561(c), (d); Myers v. United States, 272
U.S. 52, 122 (1926); Carey v. United States, 132 F. Supp. 218, 220 (Ct. Cl. 1955).
The President’s removal power includes “the lesser power to place one upon tem
porary leave without pay as incidental to the power to appoint and dism iss.” Id. at
220; see 2 Op. O.L.C. 107 (1978) (opining that the President has the exclusive
power to impose suspension and other discipline upon his appointees). In Carey,
the court held that the President could authorize the Attorney General to suspend
without pay a United States Attorney who was under investigation for allegedly
soliciting a bribe. 132 F. Supp. at 222. As this Office has noted, “[i]t is hardly
necessary to say that the court would have arrived at the same conclusion if a
United States Marshal had been the official under investigation.” Harmon M em o
randum I at 1. We have also indicated that Carey applies equally to a suspension
1 Se e M em orandum for the A ttorney G eneral, from T heodore B O lson, A ssistant A ttorney G eneral, O f-
fice o f Legal Counsel, Re S uspension o j U nited S ta tes A tto rn eys (Sept 25, 1984) (’‘O lson M em orandum ” );
M em orandum for Paul R M ichel, A cu n g D eputy A ttorney G eneral, from John M H arm on, A ssistant A tto r
ney G eneral, O ffice o f Legal C ounsel, R e S uspension o j a U n ited States A tto rn ey or U n ite d S ta te s M a rsh a l
w ithout p a x (Jan 14, 1980) (“ H arm on M em orandum II” ); M em orandum for Paul R M ichel, A cting D eputy
A ttorney G eneral, from John M H arm on, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, Re. S u sp en -
sion o j a U nited States A tto rn ey or U nited States M a rsh a l w ith o u t p a y (Jan 7, 1980) (“ H arm on M em o ran
dum I” ); M em orandum for W illiam J. Brady, Jr , A ssistant to the D eputy A ttorney G eneral, from N orbert A.
Schlei, A ssistant A ttorney G eneral, O ffice o f Legal Counsel, R e P ow er o j A ttorney G e n era l to su sp e n d a
U nited States A ttorney (A ug 14, 1964).
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Opinions o f th e O ffice o f L egal C ounsel
without pay imposed as a disciplinary measure after investigation. Harmon M em o
randum II at 1.
In this case, we understand that suspension without pay would be imposed upon
a United States M arshal preparatory to the President’s removal o f him from office.
We think that such a suspension would be well within the President’s power as an
action “incidental” to a removal. T h e Attorney General may take this step on be
half o f the President, with the President’s prior approval. See Carey, 132 F. Supp.
at 220, 222. The President, however, must undertake the actual removal of the
United States Marshal. See Presidential Succession and Delegation in Case o f
Disability, 5 Op. O .L.C. 91, 94 (1981) (opining that President may not delegate his
pow er to remove purely executive presidential appointees).
A fter the United States Marshal has been suspended, we believe that the Attor
ney G eneral may appoint someone to act in his stead, pursuant to her broad
authority to “make such provisions as [s]he considers appropriate authorizing the
perform ance by any other officer, em ployee, or agency o f the Department of Jus
tice o f any function o f the Attorney General.” 28 U.S.C. § 5 1 0 ; see 28 U.S.C.
§ 509 (providing that all functions o f the Departm ent, with certain exceptions not
relevant here, are vested in the A ttorney General); 28 C.F.R. § 0.132(e) (1993)
(“[T]he Attorney General may designate any official in the Department to act as
head o f a unit whose head is absent or disabled.”); see also Olson Memorandum at
2-3.2
RICHARD L. SHIFFRIN
Deputy Assistant Attorney General
Office o f Legal Counsel
" B ecau se there w ill not be a vacancy in th e office until the U nited Slates M arshal has been rem oved by
the President, the pro v isio n s that govern filling a vacancy w ould not apply. See 28 U S.C. I) 562, 28 C .F R.
SO 132(d)
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