The Shift: Trump Admin Strategizes Workarounds for US Attorney Posts The Trump administration is deploying workarounds that delay routing U.S. Attorney nominees through the Senate advice and consent process, where they might be blocked by Democrats. President Donald Trump has only formally tapped 27 nominees for U.S. attorney positions out of 94 districts, as of July 16. Meanwhile, the White House has opted to appoint acting and interim leadership roles in several districts—filling some of the posts with lawyers who have represented Trump in litigation or supported his political career. The appointments of Alina Habba—who represented the president in several civil trials—and Fox News personality Jeanine Pirro to interim U.S. Attorney seats in New Jersey and Washington, D.C., respectively, attracted concern from some members of the legal industry. On July 1, Trump formally nominated Habba to the USA position, only a few weeks before her 120-day interim term was set to expire. John Sarcone, who worked on Trump’s 2016 campaign and served in the U.S. General Services Administration during Trump’s first term, was also named interim U.S. Attorney in the Northern District of New York. After a panel of federal judges declined to sign off on a permanent position for Sarcone, the White House placed him in the role of first deputy assistant U.S. attorney after his 120-day temporary appointment expired. The administration’s strategy could heighten scrutiny of the Congressional intent behind the law allowing the president to install these legal leaders. The Conversation Some members of the legal industry questioned Habba and Pirro’s qualifications. In March, retired white-collar defense attorney William Maderer called Habba’s lack of experience in federal civil law and federal criminal law “very disconcerting.” “Many are concerned it will become a much more politically charged office than one based on independence and nonpartisan decisions," said Maderer, who was chief of the New Jersey USA office's special prosecution division in the late 1970s, said. Against the background of these appointments, The Connecticut Law Tribune Editorial Board voiced cautious optimism for Trump’s nomination of attorney David X. Sullivan for the U.S. Attorney of the District of Connecticut. “When considering the havoc that an unqualified U.S. Attorney can bring to the locales he or she serves—see, e.g., New Jersey’s Alina Habba and her embarrassing arrest and subsequent dismissal of charges against the Mayor of Newark, or Washington, D.C.’s (formerly nominated) Ed Martin and his preposterous antagonization of Georgetown Law School and passing familiarity with the First Amendment—a relatively known quantity like Sullivan is a welcome relief,” the board wrote in June. Others did not anticipate a major shakeup following the leadership changes. "The office is full of seasoned professionals who know how to do their jobs and will continue to do their jobs regardless of who’s there," said Riker Danzig's Charles McKenna, a white-collar attorney and veteran of the New Jersey USA office. "I've always said it's the best law firm in the state of New Jersey. It's filled with great people and they will continue to do great work." The Significance Although Habba’s initial interim status shielded her from the Senate advice and consent process, Sens. Cory Booker, D-NJ, and Andy Kim, D-NJ, who have criticized Habba for partisanship, will have the chance to withhold their so-called blue slip. The Senate Judiciary Committee Chairman Sen. Chuck Grassley, R-IA, can decide whether to honor the blue slip tradition and halt the nomination process. Sarcone’s interim appointment has also averted the blue slip process with Senate Minority Leader Chuck Schumer, D-NY. In May, Schumer said he would place a hold on Department of Justice political nominees following news that the Qatari government gifted Trump a $400 million private jet, asserting the move was a “galling and truly breathtaking politicization at the Department of Justice.” Sarcone, now special assistant U.S. Attorney, said he has “all the powers of the U.S. attorney” as the Northern District of New York seat remains vacant. "Because there’s no U.S. attorney in place, I became 'acting' U.S. attorney for an indefinite term," Sarcone said. Carl W. Tobias, professor at the University of Richmond School of Law, described the move as a "circumvent step process.” "It’s indefinite but subject to Pam Bondi’s whim,” Tobias said. "I think this is all peculiar and not necessarily the way that Congress anticipated this Vacancy Reform Act would work. I have real questions about whether what has happened is appropriate in terms of Congress’s intent here." The Information Want to know more? Here’s what we’ve discovered in the ALM Global Newsroom: Trump Administration's Pick for US Attorney in Albany Is Not Going Anywhere, After Appointment Leads to Title of 'Acting' ChiefAmbiguity Over Term Limits Means Courts May Have to Determine Next U.S. Attorneys in High-Profile Districts Federal Judges Nix Trump Administration Appointment for U.S. Attorney in Upstate New YorkAlina Habba Formally Nominated to Lead NJ US Attorney Office Choice of Pirro as Top Federal Prosecutor in D.C. Raises ConcernsInterim US Attorney Speaks About Fateful Meeting With Judges, Recent Knife Attack Trump Names Former Judge and DA Jeanine Pirro Interim US Attorney for Washington, DCCautious Optimism as New U.S. Attorney for Connecticut May Face Tough Decisions Threats of Investigation by Prosecutors Are Improper'Curious' but Calm: As They Advise Clients, Lawyers Weigh Trump Administration's Priorities for White Collar Enforcement Inexperience, Potential Partisanship of Incoming NJ US Attorney Worries White-Collar BarAlina Habba Takes Over as U.S. Attorney for New Jersey as Giordano Departs for Ambassador Role John Sarcone III, Veteran of First Trump Term, Is Tapped for Upstate U.S. Attorney Post The Forecast The Trump administration strategy might avoid nominations getting stalled out in the Senate, but it could create some haziness around the validity of the USA leadership. Tobias said criminal defense counsel could argue a prosecution as invalid. "That’s a very technical argument. But defense counsel, under the Constitution, will do anything they can to help the client and that’s their duty under the law. I have seen this happen—that there’s some kind of technicality that prevents a prosecution that would otherwise stand up from working.” Tobias said that possibility would waste a lot of time and frustrate everybody in the court system. If prosecutions do unravel due to the nomination strategy, that could apply pressure on judges and lawmakers to call on the administration to return to official four-year USA nominations. | 