Trump sidesteps Senate and judiciary with some U.S. attorney picks
Last month in New York and New Jersey, panels of federal district judges declined to appoint two of Mr. Trump's interim choices to serve as U.S. attorneys – John Sarcone III of New York and Alina Habba of New Jersey. By law, if the Senate fails to confirm a nominee for a judicial post within 120 days, the District Court can extend the interim appointee or select someone else to serve in an acting capacity until a presidential nominee is confirmed.
In New York, the court declined to extend the interim top prosecutor but also declined to appoint an acting U.S. attorney.
In New Jersey, a panel of judges replaced Habba with Desiree Leigh Grace, the first assistant to the U.S. attorney and the next-highest ranking prosecutor in that office. Within hours, however, the Justice Department fired Grace and installed Habba as acting U.S. attorney, extending her term for another 210 days.
To keep Sarcone in place, Attorney General Pam Bondi named him "special attorney to the attorney general," effectively giving him the power of a U.S. attorney, and he was named first assistant U.S. attorney, leaving him in charge of the office.
The Trump administration employed similar maneuvers in Nevada and California in late July, this time appointing both interim U.S. attorneys in an acting capacity before the judges were to vote. Those two are Bilal "Bill" Essayli in California, and Sigal Chattah in Nevada.
Why some of the acting U.S. attorneys have faced resistance
The clash with the judiciary has come as some legal experts have expressed concern about actions taken by these Trump appointees or by comments they've made.
Essayli, a former assistant U.S. attorney for California, has been accused of politicizing the office by pushing his staff to pursue cases regarded as being aligned with Trump's interests. This has contributed to an exodus from the Los Angeles-based district, Bloomberg Law reported. Essayli is the only one of the four who has prior experience as a prosecutor.
Chattah was in private practice and previously ran unsuccessfully for state attorney general in Nevada. Critics have also accused her of using public office to pursue prosecutions of her political opponents and criticized her use of racially charged language in the past.
A group of more than 100 former judges sent a letter to the District Court in Nevada, urging the judicial panel to reject the extension of Chattah's appointment on the grounds of inflammatory remarks she had made in the past. In 2022, she said of her opponent state attorney general's race, Aaron Ford, who is Black, that he should be "hanging from a f****** crane."
Chattah, an Israeli, said the comment was not racist and is just a common Israeli saying. Ford won the election and is still in office as Nevada's attorney general.
Habba was one of Mr. Trump's personal lawyers before his 2024 election and was initially named White House counselor. As interim U.S. attorney, she initiated investigations into New Jersey's Democratic governor and attorney general, on allegations that they were not cooperating with federal immigration authorities. Upon being named interim U.S. attorney, Habba said she'd use the office to help "turn New Jersey red," though U.S. attorneys are supposed to remain politically neutral. She also filed and later dropped a criminal trespassing charge against the Newark mayor, a Democrat, and accused Democratic Rep. Monica McIver of felony assault at an immigration protest.
It's not just judges, but also defendants who are challenging Habba's appointment, alleging she holds the office unlawfully. Two individuals being prosecuted by Habba's office have filed motions to dismiss their cases, arguing she illegitimately holds the position.
On Friday, Sarcone's office in the Northern District of New York subpoenaed state Attorney General Letitia James as part of its investigation into whether she and her office violated Mr. Trump's civil rights in the fraud lawsuit she brought against him in 2022. He was found liable of civil fraud in February 2024, months before his re-election. Sarcone served in Mr. Trump's first administration as a regional administrator for the General Services Administration.
The U.S. Attorney's offices in Northern New York, New Jersey, Nevada and California have not responded to requests for comment.
Sidestepping the Senate and the Judiciary
Trump's administration isn't the first to exploit the acting official loophole – several administrations have relied on it in the past. In 2014, President Barack Obama appointed Vanita Gupta as acting head of the Justice Department Civil Rights Division amid the department's investigation into the Missouri shooting of unarmed teen Michael Brown by a police officer. As the CATO Institute's Thomas Berry pointed out, Obama never nominated Gupta for the permanent position, but she served well beyond the 210 days allowed by the Vacancies Act. Gupta left office in January 2017, as Mr. Trump was beginning his first term.
The scheme has received more attention from legal experts recently in light of the controversial nature of the four attorneys and the administration's overt push to sidestep the Senate and the judiciary.
A Justice Department spokesperson said Mr. Trump and Bondi have built a "fantastic team" of prosecutors with full departmental support. The spokesperson declined to comment on why the department chose to use the Vacancies Act to temporarily appoint the individuals, rather than sending them through the traditional Senate confirmation process.
The Justice Department's use of the maneuver has raised the ire of several legal experts, who said they were concerned by the administration's moves to sidestep judicial authority.
Michael Luttig, a former federal judge who signed onto the letter urging the rejection of Chattah's appointment, told CBS News that Mr. Trump's efforts to install U.S. attorneys without the Senate's approval are a part of a larger assault on the justice system and the rule of law.
"Every action that he's taken has been intended to harass, intimidate and threaten the federal judiciary into submission to his will," Luttig said.
U.S. attorneys and the Vacancies Act
Across the country, 93 U.S. attorneys lead the federal prosecutor's office in their judicial district. Each presidential appointee must be confirmed by the Senate to serve on a permanent basis. Confirmation can be a lengthy process, so, under the Vacancies Act, the president can temporarily appoint an individual to fill Senate-confirmed roles on an interim basis to allow agencies and offices to continue to function.
The act enables the president to appoint an interim U.S. attorney to any of those positions for 120 days. If the Senate hasn't confirmed a nominee by the end of that period, judges in the corresponding federal district court may extend the interim appointee or install a candidate they choose as acting U.S. attorney for another 210 days.
"My understanding is that under prior administrations, there would be some behind-the-scenes communication to make sure that the interim U.S. attorney picked by the administration was acceptable to the District Court," Berry told CBS News.
For three of the four contested nominees, Mr. Trump did not submit a nomination for the post to the Senate within the 120-day interim period. He nominated Habba to be U.S. attorney for New Jersey on June 30 but withdrew her nomination when it became evident that the Senate would not confirm her.
In addition to Habba's rejection by the judges, also standing in the way of her ability to stay on in the office was her nomination. Under the Vacancies Act, a person may not serve as an acting officer if the president has submitted that individual's nomination to the Senate.
Withdrawing Habba's nomination meant Mr. Trump could fire Grace and appoint Habba to replace her as first assistant, allowing her to assume the acting title.
In New York, Sarcone reached the end of his 120-day term without a nomination pending before the Senate. When his term expired, the District Court declined to extend Sarcone, and didn't appoint anyone to the position. The Justice Department says its appointment of Sarcone as "special attorney to the attorney general" would confer him with the authority of a U.S. attorney and is "indefinite."
As of Tuesday, six of Mr. Trump's 49 interim U.S. attorneys have served the maximum 120 days allowed under that status. Andrew Boutros of the Northern District of Illinois and Joseph Murphy of the Western District of Tennessee, have also seen their interim appointments expire.
In their cases, though, the District Courts voted to extend them on the 120th day, a person familiar with the decisions confirmed to CBS News.
It's not clear whether the Trump administration will continue to use the maneuver to appoint other U.S. attorneys. Mr. Trump has named at least 45 interim U.S. attorneys since January and has submitted nominations to the Senate for at least 30 of those picks.
In early August, the Senate approved the first two of Mr. Trump's nominees for U.S. attorneys: Jeanine Pirro to serve in the District of Columbia and Jason A. Reding Quiñones for the Southern District of Florida.
Democratic Sen. Dick Durbin of Illinois, who serves as the ranking member of the Senate Judiciary Committee, said in a statement to CBS News that the Trump administration is "abusing" the interim appointment authority to install loyalist interim U.S. attorneys without Senate confirmation.
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