More On Judges (Not Moron Judges)

A kind reader sends along the statute in question regarding US Attorney appointments.  I post it here:

28 USC 546

(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.

(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.

(c) A person appointed as United States attorney under this section may serve until the earlier of—

       (1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or

       (2) the expiration of 120 days after appointment by the Attorney General under this section.

(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.

Pay particular attention to that last section.  Now it becomes the question of interpretation.  Technically the 120 days did not run out in this case.  The Justice Department asked Judge Piersol to reappoint the interim US Attorney, Michelle Tapken.  Piersol, for reasons he will not divulge, refused.  To avoid the 120 days running out and giving Piersol the ability to appoint his own person, Tapken resigned two days early allowing another Attorney to be appointed.  So Tapken's appointment did not expire at the end of 120 days.  It ended with her resignation.  But now there is the question of who is the proper US Attorney for South Dakota.

It seems to be a breach of the separation of powers for judges to appoint the attorney's who will practice in front of them.  I question why Piersol would refuse the request of the executive branch to staff this position.  The administration attempted to staff the position and Piersol as yet has not revealed why he refused to honor this attempt.  But I can't say he was flaunting the law, as the law is a bit fuzzy on this, so I have gone back an edited my original post on this matter.