Trump administration challenged on US attorney moves

WASHINGTON — Bill Essayli was approaching a 120-day limit as an interim U.S. attorney when he hinted to conservative commentator Glenn Beck that he might not be leaving just yet.

“We’ve got some tricks up our sleeves,” the former Republican state lawmaker said in a July podcast.

Essayli would later become one of several interim U.S. attorneys to go through a Justice Department personnel maneuver that critics say unlawfully lengthens the tenure of administration allies and sidesteps the Senate confirmation process for U.S. attorneys.

Although the details vary, Trump administration-appointed U.S. attorneys in New Jersey, Nevada, California, Virginia and New Mexico have faced motions challenging the lawfulness of their appointments. District courts in at least two of those challenges already have ruled the Trump administration picks were not serving validly.

Defense attorneys in the Central District of California, in a motion seeking to disqualify Essayli from leading the office, pointed to his comment on the Beck podcast.

“This was a trick because it circumvented limitations that Congress has imposed on temporary service in important federal offices like U.S. Attorney,” the motion states.

The Justice Department moves involve the interplay between two federal laws that limit who can serve temporarily as U.S. attorney and for how long.

They were initially appointed to lead a district’s U.S. attorney office under a federal law that caps that service to 120 days and then transfers the appointment authority to the judges of the relevant district court, according to court filings challenging their appointments.

Congress passed that law in 2007 with the aim of preventing an attorney general from appointing U.S. attorneys who can serve indefinitely without Senate action.

Facing that limit, the Justice Department turned to the Federal Vacancies Reform Act, which generally designates that the first assistant to an office temporarily fills the vacancy.

Essayli, as well as officials in Nevada and New Mexico, were among those who resigned from their appointments as interim U.S. attorneys and said they looked forward “to continuing to lead” their U.S. attorney offices, the court filings state.

Attorney General Pamela Bondi designated them as the first assistant U.S. attorney for the district. And Bondi ordered that, as first assistant, they would “have authority to serve as Acting United States Attorney upon a vacancy in that office,” under the conditions and time limitations of the FVRA, the court filings state.

Challengers contend the law requires the person to have been serving as first assistant when the vacancy occurred, and if not, the person must be either in a Senate-confirmed role or meet other eligibility criteria. The Justice Department has disputed that interpretation.

John McKay, a professor at the Seattle University School of Law and former U.S. attorney, called the moves from the Trump administration “unprecedented.”

“This is clearly a pattern now and a practice by the White House, and Main Justice, the Department of Justice, to circumvent the statutory requirements for filling the office of United States attorney in the absence of a Senate-confirmed presidential appointment,” McKay said.

Stanley A. Twardy, Jr., a former U.S. attorney for the District of Connecticut, said it was an evasion of the constitutional role of the Senate to approve who is running these district offices.

“In the 40 years since I was confirmed as United States attorney under President Ronald Reagan, these are the most attempts that I have seen for an administration to avoid the advice and consent role of the United States Senate in appointing United States attorneys,” he said.

Pending challenges

A federal judge seated in Arizona who oversaw a dispute about Sigal Chattah, who was named to lead the U.S. attorney’s office in Nevada, delved into the history of the law on acting U.S. attorneys and found several options for the president to fill the role.

“But the text and history of the FVRA make clear what cannot happen: the Attorney General cannot designate Ms. Chattah as first assistant and thereby make her Acting U.S. Attorney,” Judge David Campbell wrote.

The Justice Department has appealed that ruling, which disqualified Chattah from supervising four cases, to the U.S. Court of Appeals for the 9th Circuit. Campbell agreed to not implement that ruling during the appeal in part because the challenge raises “novel and important issues.”

More courts are expected to weigh in, including an appellate court panel in dispute over the appointment of Alina Habba, a staunch Trump ally who was named as acting U.S. attorney for the District of New Jersey.

As Habba’s 120-day limit approached, judges in that district picked someone else from the Justice Department to lead the U.S. attorney’s office. Bondi fired the person the court chose, then Habba resigned, and Bondi named Habba first assistant U.S. attorney, according to the challengers.

A judge this summer found that Habba was not lawfully performing the functions and duties of the U.S. attorney’s office and said she should be disqualified from participating in the prosecution of certain defendants.

The Justice Department appealed the ruling to the U.S. Court of Appeals for the 3rd Circuit, arguing that the law applies to the first assistant to the office, “not the first assistant to any particular officer.”

“The (Federal Vacancies Reform Act) does not require that only a first assistant who was serving at the time the vacancy arose can serve as the acting official under the default provision,” the government said in a court filing.

The challengers said the government’s reading of the act would give the executive branch the greenlight to perpetually install non-Senate-confirmed individuals as the head of a U.S. attorney’s office. They warned that the structural integrity of the federal appointments process was at stake in the case.

“Such an outcome defies Congress’s carefully drawn framework and consolidates the appointment power solely in the Executive—which is precisely what the Framers and Congress sought to prevent,” their brief states.

The criminal case against former FBI Director James B. Comey has also set up yet another — yet slightly different — push to disqualify a top prosecutor, interim U.S. attorney for the Eastern District of Virginia Lindsey Halligan.

In that case, Halligan was appointed as interim U.S. attorney more than 120 days after the vacancy was first created. The first interim pick had used up those 120 days, then the district court judges picked him to stay on in the role, and then he resigned from the office, according to a motion from Comey’s attorneys.

Comey’s attorneys argue that federal judges had “exclusive authority” to pick the next person to lead that U.S. attorney office — not Bondi.

“Were it otherwise, and the Attorney General could string together 120-day appointments, the government would have little incentive to conform to the congressional plan that U.S. Attorneys be appointed through the structural safeguard of presidential nomination and Senate confirmation,” the motion states.

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