The dangerous loophole turning U.S. attorney’s offices into political instruments 

In February 1897, all criminal prosecutions in the District of Columbia stopped. Trials were postponed. New arrestees unable to post bond faced indefinite detention. A wanted fugitive captured in another state could not be extradited. For 22 days, no prosecutorial authority existed in the nation’s capital.  

The cause of this disruption? The absence of a U.S. district attorney (as today’s U.S. attorneys were then called).

On Feb. 6, 1897, the term of the incumbent, Arthur A. Birney, expired. A few days before, the lame-duck president, Grover Cleveland, had nominated the head of the local bar association, Henry E. Davis, to succeed Birney. However, the Senate declined to act on the nomination. When Birney left office, no statute clearly provided for the appointment of an interim district attorney for the capital.  

Without a Senate-confirmed official or any mechanism for the appointment of an interim, it was understood that there was no place for the prosecutorial power to reside. The stalemate ended only after Congress passed legislation permitting the local federal court to appoint an interim district attorney; President Cleveland reluctantly signed the bill. On March 1, days before Cleveland left office, the Senate voted down Davis’s nomination, and the judges of the local court appointed the failed nominee to serve in an interim capacity — something he would do for the following two-and-a-half years. 

This now-forgotten........

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