For months, President Donald Trump has employed unconventional maneuvers to put loyalists in charge of the top federal prosecutors’ offices across the country and has fought back challenges to their control. Now, it seems he’s throwing in the towel.
The Donald Trump administration in recent days has indicated that it could shift its efforts to end, through litigation, a Senate procedural tool used to block U.S. attorney nominees, rather than attempting to challenge the disqualifications in court. The shake-up follows the resignation of New Jersey U.S. Attorney Alina Habba, after a federal court upheld her disqualification and that of several other U.S. attorneys who had their jobs removed by federal judges.
Delaware U.S. Attorney Julianne Murray also stepped down on Friday, saying she was following the Habba ruling.
The administration’s maneuvers with U.S. attorneys — going over the heads of senators or around federal judges to keep unvetted prosecutors on the job — are a key part of Trump’s larger push to harness the Justice Department as an instrument of retribution against his perceived enemies. He’s counted on loyalist U.S. attorneys to conduct what critics have branded as baldly political investigations and prosecutions, including those targeting New York Attorney General Letitia James and former FBI Director James Comey.
On Thursday, Donald Trump called the so-called “blue slip” process a “scam,” arguing that home-state senators should not be able to block nominees for judges and U.S. attorneys in their own state. It’s the latest strike after Donald Trump has spent months pushing Senate Republicans to scrutinize the practice.
“‘Blue Slips’ are making it absolutely impossible to get really good people for important positions approved,” Donald Trump wrote on social media. “So unfair to Republicans, and not the norm!” He told Senate Majority Leader John Thune to “get something done, hopefully the end of Blue Slips.”
Thune immediately dismissed that call, and Senate Judiciary Chair Chuck Grassley is showing no signs of ditching the practice. Grassley also faulted the administration for not moving more U.S. attorney nominees, noting that he has been “hamstrung waiting on background investigations and other paperwork from the administration.”
A White House spokesman referred to Trump’s public comments for comment.
On previous days this week, Donald Trump seemed to signal that the court decisions striking his U.S. attorneys would eventually lead them out of their offices — despite many having stayed in place since the rulings.
Among others, Trump-installed federal prosecutors in the Los Angeles area, Nevada, and the Eastern District of Virginia have continued to serve despite being disqualified. But Donald Trump appeared to anticipate that it could not last.
“We have at least seven U.S. attorneys if we don’t have the blue slip, can’t work that way,” Donald Trump told reporters Monday.
Carl Tobias, a professor at the University of Richmond School of Law, said the administration now seemed to have only two options: either keep attempting to install temporary U.S. attorneys — with its choices constantly struck down in court — or go through the normal process of Senate confirmation.
“I would doubt that the administration wants to take this [U.S.] attorney gambit up to the Supreme Court,” Tobias said. “I don’t think they want to be told no by the Supreme Court, right? Cause that means the game is over.”
That way, he continued, “they can do what they have been doing, and that is to avoid advice and consent, which is in the Constitution — which they’ve done in over half of all District seats — and continue to play games with the system.”
But other legal experts said it was uncertain how the Supreme Court could rule. “I could easily see the court going either way,” said Nina Mendelson, a professor at the University of Michigan Law School and an authority on acting officials.
“If [the administration] does appeal, the Supreme Court may alternatively feel it needs to maintain the Senate’s constitutional role of advice and consent and construe very narrowly the president’s power to make acting appointments as US Attorneys,” she wrote in an email. “What the Supreme Court has got in a string of cases would give them reason to be more generous this time with the President’s control function and his room for judgment.”
Bill Gates on China, Donald Trump, and vaccine disinformation, The Conversation. While the administration can appeal decisions disqualifying prosecutors, it has not in two prominent cases.
In the Habba case, where the Justice Department has publicly stated that it will appeal, though it has asked the 3rd Circuit Court of Appeals for time to decide which type of appeal would be appropriate. Cory Booker and Andy Kim, New Jersey’s Democratic senators, have asked the White House to collaborate with them in selecting Habba’s replacement.
In the case of Lindsey Halligan in the Eastern District of Virginia, Attorney General Pam Bondi said it would seek an “immediate” appeal in late November — but has yet to.
Instead, it left Halligan in place and tried twice to re-indict James, but failed both times. On Thursday, the White House took what appears to be a more conventional step in the appointment of U.S. attorneys by formally requesting Senate confirmation of Halligan and submitting her questionnaire to the Judiciary Committee.
But a committee spokesman said Halligan does not have blue slips from Virginia’s senators and “nominees without blue slips do not have the votes to advance out of committee or be confirmed on the Senate floor.”
The administration is appealing rulings striking down its disqualification efforts in the Los Angeles area and Nevada. In the Northern District of New York, a federal judge seems inclined to disqualify John Sarcone III, the Trump-aligned U.S. attorney leading an investigation, as well as a separate investigation of James.
But while Donald Trump is complaining about not being allowed to make his picks, the number of U.S. attorneys he’s had confirmed in his first year so far matches that of the Biden administration. So far, Donald Trump has had 13 U.S. attorneys confirmed by the Senate (up from 2 in September), and 18 are slated to receive Senate approval next week (which would make 31). “ATTN WH; SEND MORE NOMS,” Grassley posted to social media on Thursday.
Legal experts said the increase in Senate-confirmed top prosecutors at the federal level is a positive development, even if they aren’t serving in some of the highest-impact districts. “That’s a good sign for the system,” Tobias said.
