Prepare for more ousters of interim appointees.
Prepare for more ousters of interim appointees.
A nother front has opened in the Trump administration’s battle with the federal district courts, this one arising out of the president’s efforts to circumvent the constitutionally mandated Senate confirmation process for top officials, including federal prosecutors. This week, Alina Habba, who was among Trump’s most notoriously combative criminal defense lawyers, is a likely casualty: Judges in New Jersey are nearly certain to nix any extension of her expiring interim term as the district’s U.S. attorney.
In the president’s mind (and he certainly does have his reasons), the Justice Department, at least in the first two years, tried to derail his first administration, and later demurred when pressured to politicize law enforcement for his purposes — declining to go public with the Hunter Biden investigation and to support the fiction that the 2020 election had been stolen by fraudulent voting. Then, in the Biden years, the DOJ was the engine of the lawfare campaign against Trump — indicting him twice, pushing hard (though failing) to get him tried and convicted during the final weeks of the 2024 campaign, and assisting partisan Democratic district attorneys who brought cases against him in New York and Atlanta.
From the start of his new administration, then, the president has been determined to staff the Justice Department with attorneys whose selling point is personal fealty to Donald Trump — with legal acumen and conservative philosophy decidedly tertiary credentials. The problem, of course, is that many of these attorneys could never be confirmed, even in a Senate with Republican majority (53–47) and Vice President JD Vance available to break ties.
During the transition, Trump and his aides floated the notion of trying to end-around the Constitution by a recess-appointment scheme. After some hubbub, the president retreated: The unconfirmable Matt Gaetz’s nomination to be attorney general was withdrawn (and now–Attorney General Pam Bondi nominated in his stead); and Trump pressured Republicans to stick together and confirm such touch-and-go nominees as Bobby Kennedy Jr. (Health and Human Services Secretary), Tulsi Gabbard (National Intelligence Director), and Kash Patel (FBI Director) through the regular confirmation process.
That didn’t mean the president would stick with the norm.
There are 93 district U.S. attorney posts. (Each of the 94 federal districts throughout the United States and its territories has a U.S. attorney, except for Guam and the Northern Mariana Islands, which share one.) As the top federal prosecutors in their jurisdictions, they are officers of the United States who require Senate confirmation.
Customarily, district U.S. attorneys are recommended to the president by the two U.S. senators from the state in which the district is located, so the president should have little trouble getting red state nominees confirmed. The challenge is blue states: Trump is likely to feud with Democratic senators and wants loyalists installed who will battle progressive big city district attorneys and Democratic establishments hostile to such administration priorities as immigration-law enforcement.
Such “disruptors” are tough confirmations. Ergo, the administration has tried in a number of instances to avoid the Senate by resorting to Section 546 of the federal laws governing U.S. attorneys (in Title 28, U.S. Code). This statute allows the attorney general to appoint an interim U.S. attorney for 120 days — no Senate confirmation required.
But . . . what happens after 120 days? Well, there’s some dispute about that, although I don’t think there should be — i.e., I believe the administration is trying to create ambiguity where there is none.
Under §546, the interim U.S. attorney may only continue serving beyond 120 days if the judges of the district approve. With such a judicial approval, the interim U.S. attorney may continue serving until the vacancy is filled — which could be years if the president does not try to nominate and get the Senate to confirm a full-fledged U.S. attorney.
Obviously, the statute was intended to fill what was assumed to be a temporary void, giving the president a reasonable amount of time to get a nominee confirmed, while having his own nominee (often the same person) in place. It is not a device by which the president can make serial 120-day appointments in order to avoid the confirmation process. As written, the statute allows for a single 120-day appointment, after which court approval is needed for any extension (which means that at least one branch is checking the executive, as the Senate does for formally nominated appointees). Meantime, a person whose formal nomination has been rejected by the Senate is not eligible for an interim appointment under Section 546.
The only other way to avoid the Senate confirmation process, at least temporarily, is through the “acting officer” statute (Section 3345 of Title 5, U.S. Code). This, however, is unavailing for the Trump administration because Section 3345 does not permit bringing in a person from outside the government. Instead, it allows a vacant position to be filled by either (a) the top assistant in the office (or, if the president chooses, another staffer in the office), or (b) a government officer serving in a confirmation position. Trump wants to shake up the government, not just move around the pieces already in place.
Textually, if the court does not extend beyond 120 days the interim U.S. attorney appointed by the attorney general, Section 546 empowers the district judges to appoint their own chosen U.S. attorney. Constitutionally, though, that is a non-starter. Because interim appointees wield significant executive power, the president has the power to remove them at will. Consequently, there is no point in the court’s naming someone to whom the president objects. The judges’ choice is: Extend the president’s interim appointee, agree with the administration on an alternative appointee, or allow the position to remain vacant.
For a variety of law enforcement and administrative reasons, the judges of a district do not like it when the U.S. attorney position is vacant. Hence, the administration has been calculating that, even if judges have reservations about an interim appointee selected by Trump and Bondi, they would be inclined to approve that appointee’s continued service beyond 120 days if the alternative was to have no district U.S. attorney.
But as he is wont to do, Trump has also been stressing the system.
Washington, D.C., is a district of considerable importance to the president: It is heavily Democratic; it was the locus of the Mueller probe and the two Biden-era grand jury investigations against Trump (the Biden DOJ special counsel even set up his probe of the Mar-a-Lago documents case in Washington rather than Florida); and it was the district in which the Biden DOJ prosecuted the Capitol riot cases — to whose over 1,600 defendants Trump granted clemency (almost all full pardons; a handful got commutations). Trump thus used Section 546 to install the controversial Ed Martin, a Trump favorite who represented a number of Capitol riot defendants; Martin — of course — immediately opened a criminal investigation of Senate Democratic Minority Leader Chuck Schumer of New York for threats against Justices Neil Gorsuch and Brett Kavanaugh on which the statute of limitations was about to lapse. (The Trump Justice Department sees as one of its principal missions the rewriting of the history of what Trump calls “The Rigged and Stolen Election of 2020”; Martin, in his pugnacious way, was trying to make the point that Trump’s Ellipse speech on January 6, 2021, was no worse than Schumer’s remarks in front of the Supreme Court in March 2020.)
Trump did nominate Martin to become the full-fledged U.S. attorney for D.C., but it was obvious that he wouldn’t be confirmed. The president thus found Martin an influential post at Main Justice for which confirmation is not necessary. (Remarkably, he is now the DOJ Pardon Attorney and director of Bondi’s Orwellian “Weaponization Working Group,” which claims to be eliminating politicized law enforcement — at least between the DOJ’s dismissal of the Eric Adams corruption case, investigations of Trump’s political foes, and pronouncements on the Jeffrey Epstein files.)
When Martin’s 120-day appointment as D.C. district U.S. attorney was about to expire, Trump — upon shifting him to Main Justice — proceeded to have Bondi appoint Jeanine Pirro in his stead. Contrary to media commentary that dismisses Pirro as a Fox News firebrand, she is a highly qualified and very experienced former prosecutor (Westchester County district attorney) and New York state judge. The president has formally nominated her, and I expect the Senate will confirm her. The question, however, is whether she is eligible to serve in the interim, as she has been doing. As noted above, Section 546 does not allow for a second interim 120-day appointment in the same district; and Pirro could not qualify under Section 3345 because she was not working in the government when appointed — much less working in the U.S. attorney’s office or serving in a confirmation position.
The administration contends that (a) there is precedent for a president’s making multiple 120-day appointments in the same district under Section 546, (b) the statute does not explicitly say the president cannot make multiple appointments, and (c) Pirro isn’t really a “second” appointment because she was installed before Martin’s 120 days lapsed. None of these arguments is persuasive. If there were prior instances of multiple appointments, they weren’t contested and can’t override the statute’s terms. Section 546 clearly says that after 120 days, judicial approval is required — Congress clearly didn’t enact a statute intending to do away with its own role (Senate confirmation) in the appointments process. And Pirro is on her own 120-day clock because she is the second interim appointee — Martin was the first and Pirro doesn’t get to restart the original clock just because Martin was moved out before his 120 days were up.
To be clear, I have known Jeanine since I ran the Southern District of New York’s satellite U.S. attorney’s office in White Plains when she was Westchester’s DA. She’s a fine prosecutor — more than adequately credentialed and fit. I’d like to see her confirmed by the Senate. I also think and hope the judges of the D.C. district court, though tilting Democratic, would approve her to serve in the interim if asked.
But would they?
Last week, the judges of the federal district court for the Northern District of New York (NDNY) declined to approve John A. Sarcone III, the interim U.S. attorney appointed by Bondi, to continue serving beyond the 120 days provided by the governing statute. Sarcone’s interim term ended and the position may remain vacant for some time.
Now, it may be a mistake to read too much into this — as if partisan combat were the only explanation. Sarcone had a rocky tenure. The New York Times has reported that he appears to have exaggerated an encounter with an illegal alien he described as “a maniac with a knife who was speaking a foreign language,” and who, Sarcone alleged, lunged at him on the street outside a hotel. State prosecutors had to drop attempted murder charges because the surveillance video did not bear out Sarcone’s version of events, although the man did plead guilty to second-degree menacing. It also turned out that when he filed a complaint about the incident, Sarcone listed a boarded up building as his residence; when the Albany Times Union reported this fact, Sarcone retaliated by removing the paper from the office’s press distribution list.
It could be, then, that this is just a unique situation in which the judges concluded that Sarcone was unfit. On the other hand, each of the five active NDNY judges was appointed by either President Obama or President Biden. Sarcone, a Trump partisan, very publicly projected the incident with the illegal alien as fallout from Biden’s non-enforcement of the immigration laws. And we can’t but notice that it has been judges appointed by Democratic presidents (mainly Obama and Biden) who have intervened — sometimes with unabashed enthusiasm — against Trump administration policies on immigration and other issues.
The president never formally nominated Sarcone to be the district U.S. attorney. By contrast, he has formally nominated Alina Habba, whose 120-day interim appointment lapses this week.
Habba is not deeply qualified. She had never been a prosecutor before her interim appointment. Most of her experience comes from a small firm she started in Bedminster, N.J., which is how she came into the Trump orbit (he summers at his golf club there) and became one of his personal defense lawyers.
She has had an eventful tenure. As I’ve detailed, she began by dropping one of the U.S. attorney’s office’s most prominent prosecutions — a Foreign Corrupt Practices Act case. This was consistent with a Trump policy priority (the president believes the FCPA has been abusively stretched by federal prosecutors), and the dismissal was approved by the court. Habba also presided over the arrest of Newark Mayor Ras Baraka in the mayhem stoked by Democratic politicians at an ICE detention facility; although the case against Baraka was dismissed (he’s now suing the federal government), Habba approved the indictment of one of the state’s sitting Democratic representatives, LaMonica McIver, for forcibly impeding federal officers.
Now, given that Trump has nominated Habba, it would be preferable if the district’s judges allowed her to continue serving until the Senate votes on the appointment. But let’s be realistic: Of the district of New Jersey’s 17 active judges, all but two were appointed by Democrats. Habba is a sharp-edged partisan, and I wouldn’t hold my breath waiting for Democrat-appointed judges to cut her some slack. The judges could also worry that if they approved the extension of Habba’s interim term, the president might not follow through with her formal nomination and the required Senate vote.
If Democrat-appointed district judges vote Habba out right after they voted Sarcone out, we are probably seeing the start of a trend. Again, judges would prefer that the district U.S. attorney’s post be filled, even by an interim appointee. But if this has become another field of partisan combat, in which Democrats contend — not without reason — that the president has tried to get around the Constitution’s mandate of Senate confirmation in order to install Trump loyalists, we may see more ousters of interim appointees.
We may also see, one hopes, more pressure on the administration and the Senate to show some urgency in getting qualified appointees confirmed.