The Justice Department’s war with the judiciary over US Attorneys continues to escalate, with Deputy Attorney General Todd Blanche gleefully pouring gas on the flames. This week’s conflagration involves the Northern District of New York, which has been officially rudderless since January 8, when Judge Lorna Schofield disqualified John Sarcone, III as acting US Attorney. She also quashed the subpoenas he’d issued to New York Attorney General Letitia James over fraud prosecutions of Trump and the NRA — the reason he’d been hired in the first place, despite having zero prosecutorial experience.
Because of the Senate’s blue slip rule, Trump is unable to install cronies to lead prosecutors offices in the blue states where his enemies tend to live. That’s a huge headache for Attorney General Pam Bondi, whose job depends on producing the abusive indictments her boss requires.
And so the DOJ has resorted to various wheezes, including appointing said cronies as special attorneys invested with all the power of a US Attorney (wink, wink). Courts have uniformly rejected this attempt to evade the requirement of Senate confirmation, and eventually Trump’s personal lawyers Alina Habba and Lindsey Halligan quit pretending to be prosecutors and wandered off. The executive and judiciary have reached an uneasy detente, where Bondi leaves said crony in charge as the First Assistant US Attorney, absent the prestige and job title.
But this agreement is fragile, thanks to 28 USC § 546(d), which allows judges in the district to appoint a lawyer to lead the office if the position is vacant. Pursuant to § 546(d), Judges in the Eastern District of Virginia happily blessed the continued tenure of Erik Seibert, the career prosecutor pushed out in favor of Halligan after he refused to file garbage indictments of Tish James and Jim Comey.
But when judges in the District of New Jersey refused to keep Alina Habba and installed a career prosecutor instead, Bondi angrily accused them of going “rogue” and threatening the president’s Article II powers.
Up in Albany, the judges appear to have tired of Sarcone, whose tenure has been decidedly lackluster. Aside from the debacle with the subpoenas for AG James, Sarcone seems to have fabricated details of an “attack” outside a hotel, leading reporters to discover that his claimed residence was vacant and boarded up. Back in July, Sarcone told reporters that the court had opted to retain him, prompting the judges to issue a press release stating that they’d done no such thing. Perhaps this is why Trump never even officially nominated Sarcone for the job — in fact, he never nominated anyone. In June, Sarcone told Law.com that the president knew he’d never get a US Attorney confirmed because of the blue slip rule, but would soon nominate Sarcone for a seat on the federal bench. This makes complete sense … if you have no idea how the blue slip rule works.
On Wednesday, after months of waiting for the executive branch to rouse itself from its torpor, the district judges exercised their statutory authority to appoint Donald Kinsella, a highly competent practitioner with five decades of legal experience.
At which point, the Justice Department lost its shit … again.
“Judges don’t pick U.S. Attorneys, @POTUS does,” DAG Blanche tweeted, announcing that he’d fired Kinsella just five hours after his appointment. Of course, @POTUS has not picked a US Attorney. And even if he had, he’d still have to get that person confirmed by the Senate.
Blanche is currently trying to get the judges in New Jersey to anoint his 30-year-old chief of staff as US Attorney under § 546(d). But at this point, he’d probably have better luck trying to bully Judiciary Chair Chuck Grassley into ditching the blue slip rule.
Oh, well, what’s the worst that can happen at all those US Attorneys offices in three more years?
Liz Dye produces the Law and Chaos Substack and podcast. You can subscribe by clicking the logo:
The post DOJ Flames Judiciary Over Impertinent Demand For Competent US Attorneys appeared first on Above the Law.
The Justice Department’s war with the judiciary over US Attorneys continues to escalate, with Deputy Attorney General Todd Blanche gleefully pouring gas on the flames. This week’s conflagration involves the Northern District of New York, which has been officially rudderless since January 8, when Judge Lorna Schofield disqualified John Sarcone, III as acting US Attorney. She also quashed the subpoenas he’d issued to New York Attorney General Letitia James over fraud prosecutions of Trump and the NRA — the reason he’d been hired in the first place, despite having zero prosecutorial experience.
Because of the Senate’s blue slip rule, Trump is unable to install cronies to lead prosecutors offices in the blue states where his enemies tend to live. That’s a huge headache for Attorney General Pam Bondi, whose job depends on producing the abusive indictments her boss requires.
And so the DOJ has resorted to various wheezes, including appointing said cronies as special attorneys invested with all the power of a US Attorney (wink, wink). Courts have uniformly rejected this attempt to evade the requirement of Senate confirmation, and eventually Trump’s personal lawyers Alina Habba and Lindsey Halligan quit pretending to be prosecutors and wandered off. The executive and judiciary have reached an uneasy detente, where Bondi leaves said crony in charge as the First Assistant US Attorney, absent the prestige and job title.
But this agreement is fragile, thanks to 28 USC § 546(d), which allows judges in the district to appoint a lawyer to lead the office if the position is vacant. Pursuant to § 546(d), Judges in the Eastern District of Virginia happily blessed the continued tenure of Erik Seibert, the career prosecutor pushed out in favor of Halligan after he refused to file garbage indictments of Tish James and Jim Comey.
But when judges in the District of New Jersey refused to keep Alina Habba and installed a career prosecutor instead, Bondi angrily accused them of going “rogue” and threatening the president’s Article II powers.
Up in Albany, the judges appear to have tired of Sarcone, whose tenure has been decidedly lackluster. Aside from the debacle with the subpoenas for AG James, Sarcone seems to have fabricated details of an “attack” outside a hotel, leading reporters to discover that his claimed residence was vacant and boarded up. Back in July, Sarcone told reporters that the court had opted to retain him, prompting the judges to issue a press release stating that they’d done no such thing. Perhaps this is why Trump never even officially nominated Sarcone for the job — in fact, he never nominated anyone. In June, Sarcone told Law.com that the president knew he’d never get a US Attorney confirmed because of the blue slip rule, but would soon nominate Sarcone for a seat on the federal bench. This makes complete sense … if you have no idea how the blue slip rule works.
On Wednesday, after months of waiting for the executive branch to rouse itself from its torpor, the district judges exercised their statutory authority to appoint Donald Kinsella, a highly competent practitioner with five decades of legal experience.
At which point, the Justice Department lost its shit … again.
“Judges don’t pick U.S. Attorneys, @POTUS does,” DAG Blanche tweeted, announcing that he’d fired Kinsella just five hours after his appointment. Of course, @POTUS has not picked a US Attorney. And even if he had, he’d still have to get that person confirmed by the Senate.
Blanche is currently trying to get the judges in New Jersey to anoint his 30-year-old chief of staff as US Attorney under § 546(d). But at this point, he’d probably have better luck trying to bully Judiciary Chair Chuck Grassley into ditching the blue slip rule.
Oh, well, what’s the worst that can happen at all those US Attorneys offices in three more years?
Liz Dye produces the Law and Chaos Substack and podcast. You can subscribe by clicking the logo:
The post DOJ Flames Judiciary Over Impertinent Demand For Competent US Attorneys appeared first on Above the Law.
