12 hours ago
Trump blows past the Senate to put loyalists in charge of prosecutorial offices across the country
Around the country, President Donald Trump is circumventing the Senate to install top federal prosecutors, using loopholes to keep loyalists in place.
In U.S. attorney's offices in Los Angeles, Nevada, New Jersey, New Mexico and upstate New York, the administration has effectively sidestepped or overridden both the Senate confirmation and judicial appointment processes for selecting U.S. attorneys.
When Trump's nominees can't get confirmed by the Senate, as required by federal law, the administration installs them on a temporary basis as 'interim' U.S. attorneys, who are legally allowed to serve for 120 days.
And when district judges have then rejected Trump's choices by exercising a 160-year-old power allowing them to appoint someone to the office after an interim U.S. attorney's term ends, the administration has in a few cases taken an extraordinary step: voiding the judges' decision and reinstalling Trump's desired prosecutor as an 'acting' U.S. attorney, who can serve for an additional 210 days beyond the initial 120-day interim period.
In two instances, the Trump administration preempted the judges' votes, appointing the interim U.S. attorneys as acting U.S. attorneys before the judges could have their say. And in at least one district, the administration's attempt to sidestep the Senate and district judges is being challenged in court.
Though the law doesn't explicitly forbid the Trump administration's approach of appointing people to successive temporary stints, 'the intent [of the law] was always for Senate confirmation,' said Jennifer Selin, a professor at Arizona State University law school.
'The Trump administration has been very strategic in using the law in this particular way,' Selin said.
A spokesperson for the Justice Department didn't respond to a request for comment.
The nation's 93 U.S. attorneys are the top federal law enforcement officials in their geographic districts. While they are nominated by the president, the Justice Department has historically sought to insulate them from political influence. And the president's selections are expected to have the blessing of another branch of government — either the Senate or the courts.
Carl Tobias, a University of Richmond law school professor, said the workarounds are alarming because they eliminate the vetting process conducted by the Senate, calling it 'a perversion of what the Constitution seems to require.'
Critics worry that the lack of oversight on some of Trump's picks could create a perception — if not a reality — that those prosecutors are simply doing the White House's bidding and using their offices for political purposes. For instance, Trump's pick in New Jersey, Alina Habba, has been criticized for prosecuting a Democratic member of Congress who was attempting to conduct an oversight visit at an immigration detention center.
Trump's strategy of overriding the other branches could also create tension between U.S. attorney's offices and the district courts in which they operate.
'Senatorial influence over selection has really been a critical aspect of the U.S. attorney's system, and so has the relationship between the U.S. attorney and local institutions like the district court bench, local governments and local communities,' said Daniel Richman, a Columbia Law School professor and former federal prosecutor. 'And when you start ramming people down into these offices without any consideration of local communities, and in particular of the district court bench, bad things happen.'
Richman pointed to a recent ruling in Manhattan denying the DOJ's effort to unseal secret materials in the cases of Ghislaine Maxwell and Jeffrey Epstein as an example of 'judges looking askance at an effort by Washington to circumvent the district.'
'District judges really care about the integrity, and, to some extent, the autonomy of the U.S. attorney's offices that appear before them,' he said. 'They, like any actor, like to help shape the quality of justice that's done in their courtroom, and they do that not just through their rulings, but through the influence they have on the U.S. attorney's offices. And U.S. attorney's offices that have any desire to be effective tend to their relationship with the local bench.'
The most dramatic fight over a U.S. attorney post in the second Trump administration has been in New Jersey, where earlier this year Trump picked Habba, one of his former personal defense attorneys and a vocal supporter, to serve as U.S. attorney on an interim basis while also nominating her to take the job permanently.
Habba, who had never worked as a prosecutor, is a controversial figure who opened a number of politically charged cases in her first few months on the job. Her office charged Rep. LaMonica McIver (D-N.J.) with assaulting federal agents after she clashed with immigration officials while attempting to visit an immigration detention center; she is seeking to get the case dismissed. Habba's office also arrested Newark Mayor Ras Baraka, a Democrat, but later dropped the case. And shortly after Habba took office, she opened an investigation into Gov. Phil Murphy, a Democrat, over the state's immigration policies.
It quickly became clear that Habba could not win Senate confirmation. So when her term as interim U.S. attorney was about to expire last month, district judges in New Jersey voted to determine who should occupy the post indefinitely until the Senate could confirm someone to the job.
The judges declined to keep Habba in office, voting instead to install longtime career prosecutor Desiree Leigh Grace.
But Trump quickly bypassed that selection, reinstalling Habba on a longer-term but still temporary basis as acting U.S. attorney. He did so by having the Justice Department fire Grace while simultaneously withdrawing Habba's nomination in the Senate. The withdrawal was important because nominees for a full-time U.S. attorney post generally cannot also serve in an 'acting' capacity, per federal law. But once Habba was no longer a nominee before the Senate, the Trump administration argued, she could remain in the job for another 210 days, or about seven months. What will happen after that remains unclear.
Trump's workaround to keep Habba in the job for now is contested. A defendant in a drug and gun case in New Jersey is arguing that the administration's maneuvering was irregular and unconstitutional and is challenging Habba's authority.
Habba's office didn't respond to a request for comment.
Slightly different scenarios have played out in other U.S. attorney's offices.
In the Northern District of New York, which covers Albany and Buffalo, Trump's interim choice for the job was John Sarcone III, a Republican lawyer who has run for office unsuccessfully several times and, like Habba, had no apparent prosecutorial experience. Sarcone had a tumultuous start to his tenure that included listing his address on a police affidavit as a location that was actually a boarded-up building.
When Sarcone's 120-day interim period expired, the district judges in northern New York declined to appoint him to continue in the job. But unlike in New Jersey, the judges did not select a substitute — they simply didn't appoint anyone. The Justice Department responded by giving Sarcone an appointment of 'special attorney' with an 'indefinite' term so that he could return to the job. The office didn't respond to a request for comment.
A similar sequence occurred in New Mexico last week. The district judges in the state declined to extendTrump's pick for interim U.S. attorney, Ryan Ellison. So the Justice Department converted him to the 'acting' head of the office under a federal vacancies law. As with Habba, that maneuver allows Trump to chain together the 120-day interim period and the 210-day acting period — potentially allowing the non-confirmed official to remain on the job for nearly a full year.
New Mexico's Democratic senators, Martin Heinrich and Ben Ray Luján, said the decision exemplified 'this administration's continuing willingness to trample the role of the Judiciary and Congress.'
Ellison embraced the move, saying in a statement: 'I applaud New Mexico's federal district judges for declining to appoint someone other than the Trump Administration's choice to lead the United States Attorney's Office as they had the discretion to do at the end of my interim appointment.' He added that 'the appointment of a U.S. Attorney is a process that should be sorted out in a collaborative and professional manner between the executive and legislative branches of government.'
In one powerful district — the Southern District of New York, which is based in Manhattan — Trump's interim U.S. attorney pick did not run into resistance from judges. On Monday, the judges there voted to retain Trump's choice, former Securities and Exchange Commission chair Jay Clayton. The vote allows Clayton to continue running the office indefinitely, even though Sen. Chuck Schumer (D-N.Y.) blocked Clayton's confirmation in the Senate.
In the Central District of California, which is based in Los Angeles, Trump's interim choice was Bill Essayli, a Republican who had been serving in the California State Assembly. In his early months on the job, Essayli drew scrutiny for reportedly pushing prosecutors to bring cases desired by the Trump administration but unsupported by sufficient evidence.
As his interim period was coming to an end, the Trump administration converted Essayli's title from interim to acting. It's not clear if the district's judges ever held a vote on the post. The court didn't provide an answer when asked about it.
A spokesperson for Essayli's office declined to comment.
And the administration deployed the same tactic in Nevada to keep in place Sigal Chattah. In the final days of her temporary tenure as interim U.S. attorney, a group of more than 100 retired federal and state judges wrote to the chief federal district judge in Nevada to object to voting to install Chattah after her appointment expired. The group said her history of 'racially charged, violence-tinged, and inflammatory public statements' disqualified her.
Instead of waiting for the judicial vote, the Trump administration simply made her the acting U.S. attorney. The office didn't respond to a request for comment.
While Trump may be getting his way on U.S. attorney choices for now, the strategy may ultimately come back to haunt him.
Retired U.S. District Judge John S. Martin predicted that the practical effect of the maneuvers is that a U.S. attorney who is installed over the objections of the local bench will lose credibility with the judges, not necessarily because of any actions they take, but simply by virtue of the process.
That may jeopardize cases in court for prosecutors, Martin said, because it 'means that when the government comes in and asserts something a little bit unusual, it's going to get a very skeptical view from the court.'
