Ironically, a ruling against the U.S. attorney for Los Angeles could help both Trump and Comey.
Ironically, a ruling against the U.S. attorney for Los Angeles could help both Trump and Comey.
H anging over my desk is my 40-year-old commission to act as a federal prosecutor. Scanning it this morning, I was reminded that, although I was hired by the Southern District of New York’s then–U.S. attorney, Rudy Giuliani, to perform the duties of an assistant United States attorney (AUSA), my commission was signed by then–Attorney General Ed Meese.
It seems like a technical point that the authority of AUSAs to prosecute crimes in a federal district comes from the Justice Department, not the presidentially appointed district U.S. attorney. With President Trump’s crusade to staff the nation’s 94 federal districts with loyalist prosecutors who may not be confirmable, we’re beginning to grasp that this technical distinction is quite significant.
On Tuesday, a federal judge disqualified Bilal Essayli, a MAGA firebrand appointed by President Trump, first as the interim U.S. attorney for Los Angeles (the Central District of California), and then as the CDCal’s acting U.S. attorney. Yet, Judge J. Michael Seabright declined to dismiss the indictments brought by three defendants indicted in the CDCal.
The bottom line of Judge Seabright’s 55-page opinion was that Essayli’s appointments as interim U.S. attorney (under Section 546) and acting U.S. attorney (under Section 3345) were infirm. Nevertheless, the actual day-to-day prosecuting of federal cases is handled by AUSAs, not the district U.S. attorney who is supposed to be presidentially appointed and Senate confirmed. Ergo, because an AUSA’s authority to sign indictments, present cases to the grand jury, and try cases in court comes from the attorney general, not the district U.S. attorney, Seabright concluded that the indictments were properly brought, even if the improperly appointed U.S. attorney had to be disqualified.
What’s more, even though Essayli is not qualified to act as interim U.S. attorney or acting U.S. attorney, Seabright concluded that the court lacked authority to void Attorney General Pamela Bondi’s recent appointment of Essayli as first assistant U.S. attorney (FAUSA — the No. 2 position in a district U.S. attorney’s office). In addition, because Congress’s statutes governing the operation of the Justice Department give the attorney general broad authority both to run district U.S. attorney’s offices directly, and to delegate various responsibilities to subordinates, the court could not prevent FAUSA Essayli from functioning as the de facto U.S. attorney for CDCal, even though he is statutorily ineligible to hold that position.
Judge Seabright, a Bush-43 appointee to the federal district court in Hawaii, was assigned by the Ninth Circuit to decide challenges to Essayli’s status. (As we’ve discussed in connection with a growing number of similar district U.S. attorney controversies, because judges in the district are conflicted for various reasons in determining whether the U.S. attorney is qualified, the practice is for the Court of Appeals in the relevant circuit to appoint a judge from another district within the circuit. Both California and Hawaii are in the Ninth Circuit.)
Seabright was chagrined by his ruling, conceding that its form-over-substance quality was not lost on him.
Because district U.S. attorneys are generally assumed to be inferior officers of the United States, the Constitution’s appointments clause requires that they be appointed as Congress prescribes by law. Congress has thus statutorily mandated the district U.S. attorneys go through the same appointment process that the Constitution mandates for superior officers of the United States: nomination by the president and confirmation by the Senate.
Yet, prizing loyalty over credentials, President Trump has tried to end-around the Constitution by exploiting statutes that Congress designed to deal with exigencies — e.g., sudden vacancies in U.S. attorney positions; and changes in administrations that call for district U.S. attorney’s offices to be overseen by interim appointees and DOJ leadership, so that stability is maintained while the Senate confirmation process for a presidentially appointed district U.S. attorney goes forward.
Obviously, Congress’s main objective is that, before a nominee is permitted to wield the formidable powers of a district U.S. attorney, that nominee must be Senate approved. Judge Seabright opined that, as a matter of policy, presidents should not be able to subvert this objective. But alas, a district judge’s duty is not to impose policy preferences but to apply Congress’s statutes as they have been construed by superior courts in binding case law.
Here, with the well-intentioned aim of dealing with exigencies, Congress has vested the attorney general with broad discretion to enforce federal law through non-Senate-confirmed subordinates. Historically, this has worked reasonably well because it was understood to be a stopgap measure while the Senate confirmation process for a full-fledged district U.S. attorney ensues. But President Trump doesn’t like that process: It forces him to negotiate with Senate Democrats, and it interferes with his goal of empowering factotums who will prioritize lawfare against his political enemies rather than evenhanded law enforcement.
Judge Seabright did not approve of the president’s approach, but he determined that his duty was to enforce those statutes as they are written, regardless of how Congress intended them to work. That leaves it to Congress to address the unintended consequence that the president could nullify Congress’s check on his prosecutorial appointments.
Congress is now controlled by Republicans, whom Trump has cowed into paralysis. As it has shown time and again over the past ten months, the GOP is no longer the nation’s conservative party, committed to defending both Congress as an institution and the Constitution’s separation of powers principles. Hence, if Judge Seabright’s reluctant ruling holds, there is no short-term prospect that Congress will act to vindicate its advice-and-consent power. In the main, the president will be able to direct Bondi and Deputy Attorney General Todd Blanche, who have been confirmed by the Senate, to place his loyalists in charge of district U.S. attorneys’ offices. The prosecutions overseen by these loyalists will be immune from attack because they are brought on Bondi’s authority.
There may, however, be relief in store for former FBI Director James Comey and, perhaps, New York Attorney General Letitia James — two Trump political enemies dubiously indicted by Lindsey Halligan, the interim U.S. attorney Trump directed Bondi to appoint in the Eastern District of Virginia (EDVa) after her predecessor, Erik Siebert, declined to charge Comey and James.
Like the defendants in the CDCal, Comey and James are challenging their EDVa indictments on the ground that Halligan was improperly appointed as interim U.S. attorney. As I contended when she was named, I believe Halligan’s appointment is unlawful because Section 546 permits the AG to make only one interim 120-day appointment; that term had been exhausted by Siebert’s interim appointment before Halligan was brought onboard. The defendants, then, are likely to succeed in having Halligan disqualified.
Fine . . . but what happens to the indictments? Well, Comey and James may be better positioned than the CDCal defendants to get the charges against them thrown out. That is because of Halligan’s hands-on role in the EDVa grand jury proceedings.
In the CDCal, the appearance of Essayli’s name on some challenged indictments was pro forma; in substance, the cases had been presented and the indictments signed by legitimately appointed AUSAs, whose power derives from the attorney general and the Justice Department, not the district U.S. attorney.
In stark contrast, it has been widely reported with respect to the Comey charges that Halligan personally presented the case to the grand jury (her first ever criminal case as a prosecutor) and that she alone signed the indictment. Not as much information has been reported regarding the James indictment; it is believed that Halligan had a significant personal role in persuading the grand jury to indict, but how much of a role — at least to my knowledge — is not yet clear. (Grand jury proceedings are secret by law, so we don’t learn much about them unless and until they are challenged.)
That brings us to interesting news that emerged yesterday. Judge Cameron McGowan Currie issued an order in Comey’s case asserting that it is “necessary to determine the extent of the indictment signer’s [i.e., Halligan’s] involvement in the grand jury proceedings.” Judge Currie is a Clinton appointee to the district court in South Carolina, and the Fourth Circuit assigned her to decide the EDVa challenges to Halligan’s status.
My sense is that Judge Currie is already cognizant of problems with Halligan’s appointment and has realized that whether those problems call for dismissal of the charges against Comey hinges on whether Halligan was unilaterally responsible for the indictment. Consequently, Currie has directed the government to provide her by this coming Monday (November 3) with “all documents relating to [Halligan’s] participation in the grand jury proceedings, along with complete grand jury transcripts.” Because of grand jury secrecy rules, Judge Currie will review these materials in camera in making her decision on the motion to dismiss.
Expect the same procedure to be followed with respect to James.
Finally, this could bring to bear a statute I posted about a couple of weeks ago (thanks to a heads-up from Ed Whelan). Halligan indicted Comey near the tail end of the five-year statute of limitations, which lapsed on September 30. Initially, I thought this meant that if the court threw out the charges pretrial, the government would not be able to revive the indictment. But I was wrong: Under Section 3288 of the federal criminal code, if the charges were timely brought but then dismissed by the court after the statute of limitations expired, the government would have six months to bring a new indictment based on the same alleged misconduct.
Hence, if Judge Currie voids Comey’s indictment due to the breadth of Halligan’s participation in the grand jury proceedings, I believe the Trump DOJ would have six months to reinstate the charges. And if Judge Seabright’s ruling is correct, AG Bondi could revive the case simply by having qualified AUSAs (whether from the EDVa, from another district, or from Main Justice) present the case to the grand jury. (Of course, they’d have to convince an EDVa grand jury to approve the charges again, but that is rarely much of an obstacle.)
Meantime, Congress should seek to amend its DOJ statutes to provide that, if the president fails to get a Senate-confirmed U.S. attorney in place within a reasonable amount of time (say, six months), the attorney general has no authority to appoint an interim or acting U.S. attorney, or to delegate enforcement duties to another prosecutor in the district. Only such a measure could induce the president, and future presidents, to appoint credentialed district U.S. attorneys who will commit to nonpartisan law enforcement and can thus be confirmed by the Senate.