President Donald Trump has dodged the confirmation processes for several top federal prosecutors across the country, often opting to install them via loopholes instead.
When interim U.S. Attorney for New Mexico Ryan Ellison’s 120-day term ended, district judges in the area declined to extend his stay in the office. To keep him in the job, the Trump administration on Friday made him “acting” head of the office, which grants him 210 more days to lead it.
The move allows Ellison to stay in the New Mexico attorney’s office for close to a year without Senate confirmation or court approval.
A procedural loophole allows the Trump administration to keep its choice of U.S. attorney in office while avoiding the decisions of the upper chamber of Congress or the courts.
In some examples, when U.S. attorneys are unlikely to be confirmed, they are appointed as “interim” attorneys and given 120 days to serve. Other prosecutors have been granted “special” attorney status or appointed as “acting” attorneys to grant them more time in office.
Sens. Martin Heinrich (D-NM) and Ben Ray Luján (D-NM) disapprove of the move to keep Ellison. They told Politico the decision illustrates “this administration’s continuing willingness to trample the role of the Judiciary and Congress.”
Ellison praised his continued stay in office.
“I applaud New Mexico’s federal district judges for declining to appoint someone other than the Trump Administration’s choice to lead the United States Attorney’s Office as they had the discretion to do at the end of my interim appointment,” he said, adding, “The appointment of a U.S. Attorney is a process that should be sorted out in a collaborative and professional manner between the executive and legislative branches of government.”
Another example of the Trump administration extending the stays of its chosen U.S. attorneys is in New Jersey with Trump lawyer Alina Habba. Habba was appointed the interim U.S. attorney in March, and her term was set to expire in July.
A New Jersey court declined to extend her stay as U.S. attorney and instead appointed her understudy, Desiree Grace. Trump then fired Grace, pulled Habba’s Senate confirmation, and appointed her as “acting” U.S. attorney.
Her status as “acting” U.S. attorney is being challenged in court after a Julien Giraud Jr., who is facing drug and gun charges, questioned her authority. The main challenge comes from a possible violation of a federal statute that prevents the appointment of an official to an “acting” position if his or her nomination has been submitted to the Senate.
The statute says “a person may not serve as an acting officer” if the president “submits a nomination of such person to the Senate for appointment to such office.”
Other examples exist of the Trump administration’s wide influence on the nation’s 93 U.S. attorneys’ offices. In the Northern District of New York, John Sarcone III was appointed as a “special attorney” with an indefinite term after his term expired and the courts didn’t choose a substitute.
U.S. attorneys in the Central District of California and the District of Nevada were also kept in office by converting their status from “interim” to “acting.”
Legal experts have raised concerns about attempts to exploit loopholes in the law and avoid Senate confirmation or approval from the courts.
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“Senatorial influence over selection has really been a critical aspect of the U.S. attorney’s system, and so has the relationship between the U.S. attorney and local institutions like the district court bench, local governments, and local communities,” said Daniel Richman, a Columbia Law School professor and former federal prosecutor.
“And when you start ramming people down into these offices without any consideration of local communities, and in particular of the district court bench, bad things happen,” he added.
