Century-Old Case Law Lurking in the Disqualifications of Trump’s Interim U.S. Attorneys

The Supreme Court is slowly returning executive power back to the president related to political appointees? Will a pending decision do the same for U.S. Attorney picks? Dr. Eastman explains.

Dr. Eastman is a Senior Fellow at The Claremont Institute, former Professor of Constitutional Law and law school Dean, and one of the attorneys for President Trump challenging illegality in the conduct of the 2020 election.

One of the core executive powers is that of prosecuting criminals. Article II of the Constitution assigns “the executive power”—all of it—to the president of the United States. In practice, the power to execute the laws against those who have violated them is delegated from the president to the attorney general, the Department of Justice which she heads, and the 93 U.S. attorneys spread across the country.

Yet since he took office for the second time last January, President Trump and his attorney general, Pam Bondi, have had a heck of a time getting their people in place. Of the roughly 50 U.S. attorney nominations the president has sent to the Senate, fewer than half—just 19—had been confirmed by Dec. 15, and all of those but 3 were confirmed en masse in October, some 10 months after Trump took office. Although another 13 were confirmed en masse on Dec. 18, 14 are still awaiting confirmation as we approach the 1-year mark of Trump’s second term.

A good bit of the holdup is caused by the Senate’s “blue slip” process, whereby nominations will not be considered unless both senators from the nominee’s home state return a “blue slip” allowing the nominee to be considered. Originally designed to allow input from the elected senators who presumably are most familiar with the nominee’s qualifications and temperament—the “advice” part of the “advice and consent” process mentioned in the Constitution—the refusal to return a blue slip has become an obstructionist tactic deployed by Democratic senators bent on blocking as much of Trump’s agenda as they can.

But the criminal prosecution work of the U.S. attorneys’ offices does not abate while Washington plays out its slow-walking games, and the president of the United States—the nation’s top executive and chief law enforcement officer, who has the constitutional duty to “take care that the laws be faithfully executed”—needs to have people in charge of those offices.

A Democratic-Stacked Judiciary Blocks Trump’s Picks

The Constitution’s default rule for the appointment of U.S. attorneys is presidential nomination followed by Senate confirmation. But because U.S. attorneys are “inferior officers” in the Constitution’s language, Congress can allow for appointments by the president alone, by the heads of the executive departments, or by the courts of law. It has done so by allowing the attorney general to appoint “interim” U.S. attorneys for up to 120 days to fill vacancies.

But after the 120-day period expires, the interim can only remain in charge of the office if the district court in that jurisdiction approves. Six of the U.S. attorneys appointed to interim positions have been rejected by their respective district courts. Bill Essayli in the Central District of California, Julianne Murry in the District of Delaware, Sigal Chattah in the District of Nevada, Alina Habba in the District of New Jersey, Ryan Ellison in the District of New Mexico, and John Sarconne in the Northern District of New York. Not surprisingly, five of these district courts are overwhelming stacked with Democrat-appointed judges, another outgrowth of the more aggressive “blue slip” policy that has been deployed by Democratic senators in the last decade.

The Nevada District Court has seven judges, for example, and all seven were appointed by either President Obama or President Biden. It’s the same situation with the Northern District of New York where all five of judges on that court were appointed by Obama or Biden. The New Jersey District Court has 17 judges, and all but two (both George W. Bush appointees, not Trump appointees) were appointed by either Obama or Biden. The Central District of California has 28 judges, and fewer than one-third were appointed by Republicans. And five of the seven federal judges in New Mexico were appointed by Obama or Biden.

Alina Habba, who brought the indictment against Representative LaMonica McIver (D-N.J.) for interfering with ICE enforcement operations, was famously disqualified by the District Court in New Jersey after the cumulative 120-day period expired. And Lindsey Halligan, the interim U.S. attorney in the Eastern District of Virginia who obtained the high-profile indictments of former FBI Director James Comey for allegedly lying to Congress and of New York Attorney General Letitia James for allegedly falsely claiming a home in Virginia as her personal residence in order to obtain a more favorable mortgage interest rate, was disqualified by her local district court after the 120-day interim period in that office expired.

Will SCOTUS Overturn Case Law that Prevents Full Presidential Control Over Political Appointees?

The Department of Justice has said it will challenge these disqualifications on appeal. One issue will be whether the 120-day limit on the interim appointment authority is cumulative or successive. That is, if someone is appointed as interim U.S. attorney and then resigns before the expiration of the 120 days, does the attorney general get to appoint a new, different interim to fill the new vacancy for another 120 days, or does the new interim appointee only get to serve until the original 120-day clock expires. The practice has been the latter, but that leaves the president without someone who will exercise his executive authority in charge of the office, as long as the obstruction tactics in the Senate hold. That seems to be a big threat to the president’s ability to take care that the laws be faithfully executed, and therefore a big Article II executive authority problem.

An even bigger obstacle for Trump, though one that has not received much attention, is the separation of powers problem lurking in this statutory scheme requiring approval by the district court at the conclusion of the 120 days. To be sure, the Constitution’s text allows for the appointment of inferior officers by the courts of law, which would, technically, allow Congress to create the scheme whereby the courts appoint the prosecutors who prosecute cases before them.

There is nothing in the records of sparse debate during the 1787 federal convention to suggest the drafters had such an interbranch appointment authority in mind, however. Rather, it would seem more likely that they intended inferior executive officers to be appointed by the president alone or the heads of the executive departments, and inferior judicial officers to be appointed by the courts of law.

When it upheld the independent prosecutor law in the 1988 case of Morrison v. Olson, which had provided for the appointment by a “Special Division” of the U.S. Court of Appeals for the D.C. Circuit, the Supreme Court rejected that interbranch argument, but it also pointed out that the independent prosecutor statute was designed to allow for investigation and prosecution of high-ranking officials in the executive branch, and the interbranch appointment process therefore avoided the obvious conflicts of interest.

No such conflict exists in the run-of-the-mill appointment (or rejection) by district courts of interim U.S. attorneys at the expiration of the 120-day interim period. The interbranch appointment authority raises serious separation of powers concerns, and the Supreme Court has been particularly solicitous of such concerns in recent years. It also raises serious concerns about the ability of the president to take care that the laws be faithfully executed when the people doing the executing are not the people he has chosen.

A century ago, in the case of Humphrey’s Executor, the Supreme Court upheld congressional restrictions on the ability of the president to remove executive branch officials, but already on the Court’s docket this term is a case, Trump v. Slaughter, in which most observers rightly predict that the Court will overrule that old, New Deal-era case and restore a large measure of control of the executive branch to the head of that branch, the president—the only member of the entire executive branch that we the people actually elect.

If the Slaughter case ends up slaughtering the bad constitutional law from Humphrey’s Executor, it does not take much imagination to conclude that the question of judges appointing prosecutors who appear before them—that is, those officials who exercise the core executive function of prosecuting crimes—should also be in for a very serious reconsideration.