An Appointment With Judges
The Trump Administration has adopted a novel appointment strategy for United States Attorneys that bypasses the Senate. It requires the cooperation of federal judges, however.
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Justice in Brief
In the Eastern District of Missouri, ten people of an interstate car theft ring were indicted for RICO conspiracy, carjacking, and robbery offenses. All were involved in a gang known as the “Strikers.”
In the Northern District of Alabama, a woman working for the Defense Department’s Missile Defense Agency was charged with unlawful retention of national security information in her home and in her car.
In the Eastern District of California, a man was charged with providing material support to the Islamic State. The man believed he was communicating with an ISIS member when, in fact, he was communicating with an undercover federal agent. The man sent money, believing it would be used to purchase supplies for ISIS.
Updates…
High-level Justice Department official, former Donald Trump defense attorney, and assistant US Attorney for the Southern District of New York Emil Bove had his confirmation hearing to be a Circuit Judge on the Third Circuit Court of Appeals before the Senate Judiciary Committee this week.
The judge presiding over Kilmar Abrego Garcia’s detention hearing refused to order Garcia’s continued detention in the criminal case. However, he will still be detained in immigration custody pending the outcome of his case. The Trump Administration has said Abrego Garcia will also be deported to a third country but has not said when this will take place. This led Abrego Garcia’s attorneys to ask the court not to release their client as this will prevent his deportation prior to trial.
A Senate Bypass Operation
In April, I wrote about several people President Trump appointed as interim United States Attorneys. One of those was John Sarcone in the Northern District of New York. Last Friday, the District Court judges in that district met with Sacrone as they consider formally appointing him pursuant to 28 USC 546(d). If appointed, he will remain in the position until he resigns or the President nominates someone whom the Senate confirms. It is highly likely, under the current Administration’s policy, that the President will never appoint someone to the position. Instead, the Administration’s policy appears to be that it will choose a loyalist for the interim posting and then rely on the district court to maintain the status quo by appointing the Administration’s interim selection. Doing this allows the President to bypass the Senate confirmation process. John Sarcone’s case presents a case study that illuminates how and why this occurs.
In March, the Justice Department announced John Sarcone would be named the interim United States Attorney for the Northern District of New York. Sarcone was an early Donald Trump supporter, having working on his campaign in 2016. For this work he was named a regional supervisor for the General Services Administration, which manages federal properties and procurement functions. He also ran unsuccessfully for Westchester County district attorney and for a seat on Supreme Court in New York (note well: this is the lowest level of court in New York, not the highest). Prior to those activities, Sarcone worked in private practice at his own general practice firm where he often represented municipalities and small businesses. When selected, Sarcone said he looked forward to becoming part of the “Take Back America Initiative.”
In office, Sarcone aimed to increase the number of cases the office prosecutes. This included eliminating the minimum quantity requirements for fentanyl cases and image quantity requirements for child pornography cases. He also said he would prosecute any illegal immigration case brought to his office. To deal with the additional cases, he said the office will receive seven new Assistant US Attorney positions. He also hoped that more district court judges would be appointed to deal with the increased caseload.
Sarcone’s term as US Attorney has been relatively uneventful until the last week. While walking in Albany, Sarcone was attacked by Saul Morales-Garcia, a forty-year-old man in the United States illegally. Sarcone was standing outside a hotel when Morales-Garcia began yelling at Sarcone and then came at Sarcone with a knife. Initially charged with attempted murder, the local district attorney reduced the charges to menacing, citing the lack of intent to kill Sarcone based on video of the incident. Sarcone used the incident, however, to attack political enemies and advance the Justice Department’s agenda. He criticized the Albany police department for not responding but praised the county sheriff for doing so. According to Albany police, Sarcone called the sheriff directly rather than calling 911 to report the incident. He also used the incident to blame the state’s Democratic governor’s immigration policy.
Should Sarcone receive the court’s approval, he would become the seventh judicially-appointed United States Attorney of the 93 nationwide. The others include the Southern District of Texas, Eastern District of Tennessee, the Districts of Massachusetts and Maryland, the Southern District of Florida and the Eastern District of Arkansas. Those in Arkansas and Tennessee were initially appointed under President Biden. Jonathan Ross, in Arkansas, was appointed by the court in 2022. Trey Hamilton, in Tennessee, had been the acting US Attorney until early January, when Attorney General Garland named him interim US Attorney. In the spring, the court selected Hamilton. The remaning four were appointed since the second Trump presidency began. All had significant federal prosecutorial experience prior to their selection. Two worked for Republican Senators during their legal careers. Otherwise, none of those appointed had significant political backgrounds. Should the court appoint Sarcone, he would be the least qualified as his only prosecutorial experience has been his 100+ days as United States Attorney.
Sarcone has plenty of company as an interim US Attorney. There are 27 others who have the interim title. That means, unless the President formally nominates the interims, district courts across the country will be busy over the next several months as they will be asked to fill those positions. Thus far, every district court has appointed the interim. Should that continue over the next several months, the President will have found a convenient Senate bypass.
The President sought a bypass because Senators, if they wish, can serve as an important check on US Attorney appointments. Any Senator can place a hold on a nominated US Attorney. Recently, NY Senator Chuck Schumer announced he would place a hold on all US Attorney confirmations in response to President Trump’s Justice Department nominees in response to the President’s acceptance of a jet from the Qatari government. The hold forces the Senate to hold a procedural vote on each nominee. This slows the confirmation process considerably. Schumer’s announcement was ususual, however. In most instances, Senators from the state to which the US Attorney is appointed will place holds, especially if they do not like the appointment or were not consulted.
The Senate confirmation process also creates an alternative power source for US Attorneys. Many of those selected have some connection to one or more of the Senators for that state. For example, the person appointed to the Southern District of Texas had served on Senator Ted Cruz’s state. Others know the Senators through affiliation with the same political party. Influential Senators can hold some power over US Attorney decisions. Avoiding the Senate confirmation process removes the alternative power source for US Attorneys.
This is not to say that there are no risks with the interim to judicial appointment option. During President Trump’s first administration, he appointed Geoffrey Berman the interim US Attorney for the Southern District of New York after firing Preet Bharara. He never nominated Berman, however, and the district court appointed Berman. When Berman did not heed instructions from the White House and Attorney General, the President instructed the Attorney General to fire Berman. The problem was that he could not because Berman had been court-appointed. Berman remained until he secured a promise that his first assistant would receive the post.
Bypassing the Senate confirmation process also weakens whatever democratic accountability remains for federal prosecutors. In theory, juries hold prosecutors accountable for their charging decisions. This rarely happens as nearly every federal criminal case ends with a guilty plea. The Senators who confirm US Attorneys are elected and, thus, are accountable to the people. This means that, in some small way, if Senators confirm a poor US Attorney, the people can hold the Senator responsible for the choice. While US Attorney nominations are not salient political issues, the Senator will at least consider the choice in their electoral calculus. Judges do not provide the same level of accountability as they have lifetime tenure. They are not accountable to an electorate or a jury.
Another problem with judicial appointment is that the judges do not appear to participate in the selection process. When the Senate confirms someone, it occurs after the Senators have made recommendations to the President. The same does not occur with judicial appointment. Judges do not have the time or inclination to identify and consider alternative choices. Instead, they merely ratify whoever holds the interim position.
All of this does not mean there are positives to circumventing the Senate. Each interim US Attorney gets a trial run. If the person performs adequately, then the judges will likely appoint the person. However, if the person fails to perform adequately, political pressure could force a change. This happened with Ed Martin in the District of Columbia. His decisions and public statements created such a political firestorm that the President was compelled to withdraw the nomination. Of course, it is important to note that this was a Senate confirmation process, rather than judicial appointment process.
One last interesting factoid about the President’s appointment policy. The position of US Attorney was created through the 1789 Judiciary Act. An early draft of the act gave the appointment power to judges. During deliberations on the legislation, the appointment power shifted to the President with Senate consent. The President’s policy takes us full circle to the original, discarded, idea.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!