Suspension of a United States Marshal

W ith the prior approval o f the P resident, the A ttorney G eneral m ay suspend a U nited States M arshal 

w ithout pay.

D uring the period o f a U nited States M arshal’s suspension, the A ttorney G eneral m ay d esig n a te an 

A cting U nited States M arshal to carry out the duties o f the office.

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 General and to the Marshals Service, that the Attorney General has the power to suspend a United States Marshal without pay, with the President’s prior approval. She 

may also designate an Acting United States Marshal during the period of the 

United States Marshal’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 of 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 temporary leave without pay as incidental to the power to appoint and dismiss.” 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 emorandum I at 1. We have also indicated that Carey applies equally to a suspension

1 See M emorandum for the Attorney General, from Theodore B Olson, Assistant A ttorney G eneral, Office of Legal Counsel, Re Suspension oj United States A ttorneys (Sept 25, 1984) (’‘O lson M em orandum ”); 

M em orandum for Paul R Michel, A cung Deputy Attorney General, from John M Harmon, A ssistant A ttorney General, Office o f Legal Counsel, Re Suspension oj a U nited States Attorney or U nited S tates M arshal

without pax (Jan 14, 1980) (“Harmon M em orandum II”); M em orandum for Paul R M ichel, Acting Deputy 

Attorney General, from John M Harmon, Assistant Attorney General, O ffice of Legal Counsel, Re. Suspension oj a United States Attorney or U nited States M arshal w ithout pay (Jan 7, 1980) (“ H arm on M em orandum I”); M emorandum for W illiam J. Brady, Jr , Assistant to the Deputy A ttorney G eneral, from N orbert A. 

Schlei, Assistant Attorney General, O ffice o f Legal Counsel, Re Pow er oj Attorney G eneral to suspend a

United States Attorney (Aug 14, 1964).

75
Opinions o f the Office o f Legal Counsel

without pay imposed as a disciplinary measure after investigation. Harmon Memorandum II at 1.

In this case, we understand that suspension without pay would be imposed upon 

a United States Marshal preparatory to the President’s removal of him from office. 

We think that such a suspension would be well within the President’s power as an 

action “incidental” to a removal. The Attorney General may take this step on behalf of 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 of

Disability, 5 Op. O.L.C. 91, 94 (1981) (opining that President may not delegate his 

power to remove purely executive presidential appointees).

After the United States Marshal has been suspended, we believe that the Attorney General may appoint someone to act in his stead, pursuant to her broad 

authority to “make such provisions as [s]he considers appropriate authorizing the 

performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.” 28 U.S.C. §510; see 28 U.S.C. 

§ 509 (providing that all functions o f the Department, with certain exceptions not 

relevant here, are vested in the Attorney General); 28 C.F.R. § 0.132(e) (1993) 

(“[T]he Attorney General may designate any official in the Department to act as 

head of 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 ecause there will not be a vacancy in the office until the United Slates M arshal has been rem oved by 

the President, the provisions that govern filling a vacancy would not apply. See 28 U S.C. I) 562, 28 C.F R.

SO 132(d)

76