From investigating money laundering to enforcing America’s drug laws, U.S. attorneys possess a considerable amount of discretion in how to allocate the Department of Justice’s scarce law enforcement resources. Each of the 93 U.S. attorneys has the ability to make prosecutions of various federal statutes more or less likely and sentencing for any violations more or less draconian.
Because U.S. attorneys hold so much power, it makes sense that the Senate has the role of confirming or rejecting presidential appointments to the position. Without that check, the U.S. attorney offices could just become another arm of the executive branch.
That nearly happened during the Bush administration when Attorney General Alberto Gonzales attempted to purge attorneys seen as not sufficiently loyal to the president.
Like so much today, what ailed the rule of law under Bush is returning in even more virulent fashion under Donald J. Trump. Attorney General Jeff Sessions is abusing a little-used statute in an unprecedented way that is leading to an end run around the Senate’s advice and consent authority with respect to U.S. attorneys. Given what we know about the ongoing investigations into the president and Trump’s authoritarian instincts, this is a frightening and dangerous development.
In 2007, Congress responded the U.S. attorney scandal by amending the statute governing U.S. attorney appointments to clarify that there were limits on the appointment of interim U.S. attorneys. But under that amended statute (28 U.S.C. Section 546), the attorney general still has nearly unlimited discretion in selecting interim U.S. attorneys to serve for up to 120 days.
That level of discretion is at odds with the problem of executive branch overreach the statute sought to limit and a series of actions on this front by Sessions require vastly more scrutiny and skepticism than they have received thus far. On March 10, 2017, Sessions summarily fired 46 U.S. attorneys, including most dramatically U.S. Attorney for the Southern District of New York Preet Bharara. Under the Vacancies Act, the career figures who took over those offices could serve for 300 days on that acting basis. Flash forward the start of this year, when on Jan. 3, the Justice Department announced the appointment of 17 interim U.S. attorneys to replace acting officials whose time had run out.
The 17 interim appointments were nearly exclusively from states with at least one Democratic senator. This is notable because, historically, senators are accorded the ability to block Senate Judiciary Committee votes for U.S. attorney nominees from their home states as part of the “blue slip” process.
Due to the potential legal exposure of Donald Trump, the Trump Organization, Jared Kushner, and the Kushner family business in the Southern District of New York, the Eastern District of New York, and New Jersey, those interim appointments are the most obviously troubling.
For example, the close ties of Trump and Jared Kushner to Deutsche Bank have been the subject of much scrutiny. Sessions’ handpicked interim U.S. attorney for SDNY, Geoffrey Berman, meanwhile, has his own ties to the financial institution that has remained controversial due to its relationships with many figures close to Vladimir Putin. Per Bloomberg News:
A decade ago, Berman was brought in to do legal work for Deutsche Bank when Robert Khuzami was its general counsel in the U.S., according to three people familiar with the matter. Now that Berman has been tapped for the Southern District of New York, Khuzami has become his deputy.
Additionally, Trump “personally interviewed Mr. Berman for the job,” according to reporting from the Wall Street Journal. A president interviewing a potential U.S. attorney “is rare,” per the Journal, “and the move—reported last fall—was seen by some as particularly troublesome, given the office’s authority over Mr. Trump’s home city and the seat of his business empire.”
There are other Trump-related entanglements that prosecutors in these districts have been dealing with as well. Presidential senior adviser and son-in-law Jared Kushner’s family business is reportedly being investigated by the Eastern District of New York in conjunction with the Securities and Exchange Commission over its use of EB-5 visas for immigrant investors.
In May of 2017, meanwhile, SDNY settled a case with Deutsche Bank concerning money laundering on behalf of Russians.
The Kushner family also retains significant business in New Jersey, and thus potential legal liability related to problematic activities there.
Beyond favorable treatment, what could a Trump-allied U.S. attorney do for the Trump or Kushner families? One possibility is that within his or her 120 days running the office, an interim U.S. attorney could review case files relevant to the legal exposure of the president, the Trump Organization, or Kushner Companies. A sufficiently corrupt prosecutor could share those findings with political appointees in the Justice Department or the White House.
The ability of new handpicked acting U.S. attorneys to access all evidence related to various ongoing investigations is a big deal. For example, EDNY surely has information about former Trump associate and FBI informant Felix Sater and his ongoing status in a variety of investigative arms of the federal government, information that might be useful to Trump’s lawyers. If Trump or Kushner wanted to see what Deutsche Bank is sharing with federal officials, a friendly U.S. attorney could also find that out for them.
Additionally, friendly U.S. attorneys could potentially divert resources to relieve pressure on Trump and his family. What if a U.S. attorney moved to settle a series of controversial cases and then diverted resources from areas of Trump family legal concern (e.g., money laundering, tax collection, securities fraud) to other less politically fraught areas (human trafficking, gangs, war on drugs, etc.)?
Regardless of how justifiable such a decision may or may not be in a vacuum, it would be scandalous if done in order to attempt to relieve pressure on Trump or his allies.
It is important to note that there is no real way for the special counsel’s work to be totally opaque to these new hires, or avoid some degree of reliance on or cooperation with their offices. Law enforcement officials share databases, files, FBI agents, and many other resources in common. There’s no evidence that anybody has done anything wrong yet, but the worry is that these conflicts of interest create opportunities for legal and ethical shenanigans by an administration that seems to have ample motive to obstruct law enforcement.
It’s also important to understand what happens after the 120-day interim period ends. The statute (28 U.S.C. Section 546) offers straightforward but minimalist guidance:
If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled.
That raises critical questions. First: Will district courts defer to Sessions and grant interim U.S. attorneys an extended stint? There is a public indication that Colleen McMahon, the chief judge in New York’s Southern District, is preparing for the possibility of not deferring, but her letter to fellow judges in January laying out the possibility the court would choose someone else elicited “surprise” from some fellow judges of the SDNY. Similar actions in other courts could well be ongoing. Another important question is how might district courts identify alternatives to the current interim U.S. attorneys? Identifying and vetting U.S. attorneys takes time. Finally, if the Trump administration can install favored U.S. attorneys without Senate confirmation and then have those picks ratified by district courts, how long can they serve? The statute seems explicit—they can serve indefinitely. If Trump secures control over federal prosecutors without going through the nominations process, what does that mean for the Senate’s advice and consent role?
Lethargic oversight by the Senate Judiciary Committee majority and the media have allowed Trump and Sessions to install loyalists in U.S. attorney positions across the country, especially in districts that are the locus of Trump and Kushner family legal exposure. These actions represent a test of civil society’s ability to fight back against threats to the rule of law.
Thus far, the test is going poorly.