When I opined yesterday that Lindsey Halligan would become acting U.S. Attorney pursuant to the Vacancies Reform Act if Attorney General Bondi appointed her as first assistant to the office of the U.S. Attorney, I overlooked that President Trump has submitted to the Senate his nomination of Halligan to the U.S. Attorney position. That nomination, I believe, renders her ineligible to become acting U.S. Attorney by virtue of being first assistant.
Specifically, subsection (b)(1) of 5 U.S. Code § 3345 states:
Notwithstanding subsection (a)(1) [the provision that makes a first assistant the acting officer], a person may not serve as an acting officer for an office under this section, if—
(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person—
(i) did not serve in the position of first assistant to the office of such officer; or
(ii) served in the position of first assistant to the office of such officer for less than 90 days; and
(B) the President submits a nomination of such person to the Senate for appointment to such office.
As it happens, the Q&A guidance in an Office of Legal Counsel opinion that I issued back in 2003 sets forth OLC’s reading of this provision:
Q2. Under the Vacancies Reform Act (and Department of Justice regulations, see 28 C.F.R. § 0.137 (2003)), is the First Assistant U.S. Attorney the person that automatically, by operation of law, would become Acting U.S. Attorney under 5 U.S.C. § 3345(a)(1)?
A2. Generally yes, … except that a first assistant may not act if he has been first assistant for less than 90 days in the 365-day period before the vacancy and the President nominates him for the vacant position…. [Emphasis in original.]
In other words, if Trump hadn’t nominated her as U.S. Attorney, Halligan could have become acting U.S. Attorney by virtue of being first assistant even though she would have served as first assistant for less than 90 days. But her nomination means that the two conjunctive conditions under subsection (b)(1) would exist and thus render her ineligible to become acting U.S. Attorney.
I suppose that Trump could withdraw her nomination….
This whole thing is turning into a fiasco.