This is worth watching.
T he U.S. attorney’s office for the Eastern District of Virginia (EDVa) has been an important one in recent times. Terrorism prosecutions were centered there after 9/11. It is also home to the Pentagon and many arms of the intelligence community (the CIA, the Office of the Director of National Intelligence, the National Counterterrorism Center, among others), making it the venue of many critical government activities, and thus of any Justice Department investigations involving such activities.
I point this out in light of President Trump’s directive that Attorney General Pam Bondi appoint Lindsey Halligan as the EDVa’s interim U.S. attorney. Our Jeff Blehar observes that the Trump administration seems chaotic by design. Halligan’s appointment, which happened Monday, courts chaos.
A former personal attorney to Trump, the 36-year-old Halligan practiced insurance law in Florida. As Christine Rosen explains in her superb essay for the new issue of National Review magazine, Halligan is the White House aide with no relevant scholarly credentials in history or practical museum experience who nevertheless got the president’s nod to audit the Smithsonian for wayward ideology. That assignment seems to have been superseded by her new appointment, notwithstanding her similar lack of prosecutorial experience.
She is taking the reins at one of the nation’s largest and most significant district U.S. attorney’s offices. What may trip Halligan up, however, is not her lack of training (there is no experience requirement). Rather, it is the statute that controls interim U.S. attorney appointments. There is a real question about whether Halligan is eligible under it — not because of any shortcoming on her part but because the administration has already had an interim U.S. attorney, whose tenure lapsed.
The EDVa has not had a Senate-confirmed U.S. attorney during the second Trump administration. As adumbrated by the president’s weekend post, pressuring Bondi to step up efforts to indict Trump’s political enemies (see our editorial), Halligan has been appointed because the previous Trump-appointed interim U.S. attorney, Erik Siebert, was removed — reportedly for declining to indict Trump antagonists James Comey and Letitia James.
Siebert is well-regarded and steeped in law enforcement: a former police officer who became a career prosecutor. It has been reported that AG Bondi and Deputy Attorney General Todd Blanche urged the president not to fire him because he was effective in pursuing the president’s top enforcement objectives (e.g., immigration enforcement).
Besides naming Siebert to the interim post, the president nominated Siebert to become the full-fledged — i.e., Senate confirmed — EDVa U.S. attorney. In so doing, Trump knew Siebert had the approval of Virginia’s two Democratic senators, Mark Warner and Tim Kaine. The way Senate confirmation traditionally works, senators of the state in which the relevant district sits can block the appointment of a U.S. attorney. Hence, presidents must negotiate with senators from the opposition party; that can be frustrating, but it usually leads to the appointment of accomplished lawyers who are former prosecutors — and who will not allow partisanship to infect law enforcement.
Yet, in withdrawing Siebert’s nomination a few days ago, the president nonsensically suggested that support of a nominee by Democrats who oppose Trump on various policy matters would be disqualifying. Given that Warner and Kaine are hardly unique among Democrats in this regard, the stance Trump has taken would effectively block the nomination of any Trump appointee in any state with a Democratic senator. That is, the Senate confirmation process would shut down.
The president had submitted Siebert’s nomination to the Senate in May. Support was sufficiently strong that the Judiciary Committee, which often divides along partisan lines, advanced Siebert’s nomination by voice vote in late July. At that point, the nomination was placed on the Senate Executive Calendar to be scheduled for a floor vote. Last weekend, however, Trump withdrew the nomination before it could be voted on.
In the interim, Siebert had continued serving as interim U.S. attorney since the start of the Trump administration. Under the governing statute, Section 546(c) (of Title 28, U.S. Code), an interim U.S. attorney may serve for a maximum of 120 days. At that point, the interim term expires unless the judges of the district court approve its extension. Siebert’s 120-day term expired in May, but the court approved his continuation in the interim status while his Senate confirmation process moved forward. The EDVa district court has a 7-4 majority of Democratic-appointed judges.
Siebert’s law enforcement background and success in being extended stand in marked contrast to two other lawyers whom Trump installed as interim U.S. attorneys. As I’ve previously detailed (see here and here), when the 120-day periods lapsed for Alina Habba in the District of New Jersey (DNJ) and John Sarcone in the Northern District of New York, the judges of those districts declined to extend their appointments. The same thing happened with Ryan Ellison, an experienced former federal prosecutor Trump named interim U.S. attorney in New Mexico, only to have the district court judges decline to extend his tenure. Each of the three pertinent district courts (New Jersey, Northern New York, and New Mexico) has a lopsided majority of Democratic judicial appointees. With Obama or Biden having been president for twelve of the previous 16 years before Trump’s second term, it is to be expected that judicial appointees to the lower federal courts skew heavily Democratic. Much as he wants to, the president can’t ignore that fact, any more than he can brush aside Senate Democrats, in filling U.S. attorney slots.
But he’s trying to ignore it nonetheless. The Trump Justice Department has controversially attempted to extend its defeated interim appointees by designating them as “acting” U.S. attorneys, under a different statute (Section 3345 of Title 5, U.S. Code). The problem is that they don’t appear to meet that statute’s qualifications because they lack sufficient prior ties to the U.S. attorney’s offices Trump wants them to lead.
On August 21, Judge Matthew Brann, the Obama-appointed chief judge of the Middle District of Pennsylvania, issued a comprehensive 77-page opinion, ruling that Habba’s interim appointment was invalid after 120 days, and that her appointment as acting U.S. attorney was likewise ultra vires. (Judge Brann similarly rejected Bondi’s attempt to shore up Habba’s appointment by stamping her as a “special” assistant U.S. attorney.) Brann’s ruling is now on hold while the Justice Department appeals. (The Third Circuit federal appeals court had assigned Brann to preside because the DNJ judges were conflicted, having voted not to extend Habba.)
If, as I believe is likely, the Third Circuit affirms Judge Brann’s decision, the next questions will be (a) whether that decision will be used to challenge the status of Sarcone, Ellison, and possibly other Trump interim or acting appointees; and (b) whether defendants will be able to void Justice Department enforcement actions (such as indictments) taken during the time when a lawyer, not confirmed by the Senate, purported to serve as U.S. attorney without statutory eligibility.
That brings us back to Siebert and Halligan.
Section 546 contemplates a single 120-day period, after which any new interim appointee must be approved by the court. That is what Judge Brann held, and it appears to be the most straightforward way to read the statutory text. Now, after 120 days, Section 546 also empowers the court to appoint a U.S. attorney to act in that role until the vacancy is filled by a nominee who has been Senate-confirmed or court-approved. As a matter of constitutional law, however, because U.S. attorneys wield executive power, the president may remove a U.S. attorney the court has appointed. Recall that in Trump’s first term, he removed the court-appointed U.S. attorney for the Southern District of New York.
And, of course, the president has just removed Siebert. That raises the critical question: Does Trump’s removal of Siebert create a new vacancy, or does it merely continue the vacancy that the Trump administration’s original interim appointment of Siebert temporarily filled?
If it is deemed correct simply to continue the existing vacancy, then Halligan is out of luck. Siebert already served 120 days as the interim appointee filling that vacancy. Section 546 does not permit a second 120-day term for Halligan (or any other interim appointee) to fill the same vacancy. Halligan is eligible to serve for 120 days only if Trump’s removal of Siebert after the judges voted to extend his interim term creates a new vacancy.
That would seem odd. After all, if the district judges hadn’t voted to approved Siebert’s extension, Section 546 would not have permitted Trump and Bondi to appoint Halligan to replace Siebert absent the court’s approval. Can the president really create a “new” vacancy and install a new interim U.S. attorney for 120 days with no Senate confirmation or judicial approval, by the expedient of firing the prior interim appointee — the one he himself had appointed and then persuaded the judges to approve for extension?
This is worth watching. There is no question that, if Trump and Bondi convinced the EDVa judges to approve Halligan as interim U.S. attorney, she could serve until she or someone was confirmed by the Senate as the full-fledged EDVa U.S. attorney. Yet, the judges are no doubt displeased that Trump fired the interim appointee he’d gotten them to approve, so it seems unlikely that they’d approve someone else — especially someone with no experience in criminal law or in running a big office. And because it knows that the judges are unlikely to approve Halligan, the Trump Justice Department is not asking them to do so; it is just installing her and hoping to tough it out for the next 120 days.
We’ll see how that flies. Meanwhile, the question for Senate Republicans is how long they will indulge the administration’s contrivances? The president is trying to avoid the crucible of a Senate confirmation process. That not only violates the Constitution; it usurps a prerogative of the Senate — the institution in which these Republicans serve.
The administration complains that Senate Democrats are unreasonably slow-walking or blocking the president’s nominees. Democrats counter that Trump is contorting laws to install unqualified people who would not be confirmed if it came to a Senate vote. Depending on which appointee we’re discussing, it could be said that one side or the other has a point. But whoever is right, the blunt fact is that the precedents Trump is creating will be exploited by the next Democratic president.
How would Republicans feel about, say, Alvin Bragg as the U.S. attorney in Manhattan? Maybe Chesa Boudin in San Francisco, Kim Foxx in Chicago, Larry Krasner in Philadelphia, and George Gascón in Los Angeles? Republicans complain (and rightly so) about progressive prosecutors — Democratic state district attorneys who bring their nonenforcement policies to America’s big cities with the inevitable result of surging crime. At the federal level, what prevents Democratic presidents from installing in federal districts the kind of “don’t prosecute” prosecutors that the radical left has gotten elected around the country? The Constitution’s mandate of Senate confirmation, that’s what.
If Republicans keep looking the other way while President Trump circumvents that mandate, they will own it when Democrats take the progressive prosecutor project nationwide.