The Trump administration has increasingly gone around the Senate to extend the tenures of temporary federal prosecutors — a trend indicative of the tensions over the Senate’s role in confirming officials in the second Trump administration.
U.S. attorney nominees are frequently noncontroversial and are often voice-voted through the Senate. The picks rarely face confirmation hearings or even committee votes.
But in the current Senate, those nominees have increasingly become a negotiating cudgel.
Senate Minority Leader Charles E. Schumer, D-N.Y., started a hold on all Justice Department nominees in May over the administration’s acceptance of a plane from Qatar — a procedure that prevents the nominees from moving forward on voice votes.
In addition, Democratic home-state senators have not returned “blue slips” — a Judiciary Committee practice giving home-state senators a say in whether a nominee advances — for several U.S. attorney picks. The process dates back more than a century and effectively signaled whether home-state senators approved or opposed a nominee. The practice has declined in recent decades, including under current Senate Judiciary Chairman Charles E. Grassley, R-Iowa.
The Trump administration’s response has been to go around Democrats entirely, without much objection from the chamber’s Republicans. In recent weeks, the DOJ has used a legal maneuver to extend the tenures of U.S. attorney picks Alina Habba and John A. Sarcone III and reportedly Bill Essayli after their temporary tenures expired, rather than wait for the Senate.
On Tuesday, Trump pushed Grassley to end the practice of “blue slips,” posting on Truth Social that Grassley could end the blue slip with “with a mere flick of the pen.”
He argued the “ancient, and probably Unconstitutional, ‘CUSTOM,’” kept him from appointing his preferred candidates to states represented by Democrats.
“He should do this, IMMEDIATELY, and not let the Democrats laugh at him and the Republican Party for being weak and ineffective. The Democrats have broken this ridiculous custom on us, it’s time that we break it on them,” he wrote.
Grassley has defended the practice so far, and in a statement Wednesday pointed out that the chamber has advanced nominees from blue-state senators in Virginia and Minnesota.
“When a nominee comes out of committee all 100 senators have a say on the nomination and part of their consideration is based on the home state senators’ input,” Grassley’s statement said.
Anne Joseph O’Connell, a law professor at Stanford Law School, noted the current situation is “chaotic,” but said it was a sign there are too many Senate-confirmed federal officials anyway. She noted in an email that as of December 2021, two-thirds of U.S. attorney roles were not filled by Senate-confirmed officials.
“Because of the dysfunction of our political appointments process, we see many acting and interim U.S. Attorneys. The difference is that the courts are not extending the service of some of President Trump’s picks and the Administration is vocally attacking the courts,” O’Connell said in an email.
New Jersey
Habba, a former personal attorney for Trump, was named as the interim U.S. attorney for the District of New Jersey in March. The “interim” title comes from a federal law that allows the administration to name the top federal law enforcement official for 120 days, after which the federal judges of that district can elect to extend their tenure or choose someone else.
During Habba’s tenure, she stated a desire to “turn New Jersey red” and launched high- profile prosecutions against Newark Mayor Ras Baraka and Rep. LaMonica McIver, D-N.J., following a confrontation at a Newark U.S. Immigration and Customs Enforcement facility. The case against Baraka was dropped days later — with accompanying criticism from the presiding judge for bringing the case in the first place.
McIver has pleaded not guilty, and that case is still pending.
Last week, corresponding with the end of Habba’s 120 days, the federal judges in New Jersey chose career prosecutor Desiree Leigh Grace to serve in Habba’s stead. Attorney General Pamela Bondi responded by saying on social media the administration would not “tolerate rogue judges” who threaten the president’s appointment powers.
The DOJ fired Grace and used a federal law to install Habba as an “acting” U.S. attorney, according to an announcement last week. The administration also withdrew Habba’s nomination to serve as U.S. attorney permanently.
On social media, Habba announced she would be serving as acting U.S. attorney, and praised the Trump administration.
“I don’t cower to pressure. I don’t answer to politics,” Habba posted. “This is a fight for justice. And I’m all in.”
Earlier this month, the DOJ used a similar maneuver to install Sarcone as an acting U.S. attorney in the Northern District of New York after judges refused to bless him staying on after his 120-day term expired. Under a federal law commonly referred to as the Federal Vacancies Reform Act, Habba and Sarcone can serve in office for as long as another 210 days, following the 120 days they served as “interim” U.S. attorneys.
Similarly Bill Essayli, the interim U.S. attorney for the Central District of California, faced a Tuesday deadline for the end of his 120-day term and was reappointed as an acting U.S. attorney, according to an announcement posted Wednesday.
Democrats have cried foul over the Trump administration strategy. Sen. Sheldon Whitehouse, D-R.I., said the Trump administration has shown “they don’t care much for the advice and consent role” of the Senate. Whitehouse said the Constitution gives Congress the power to decide who appoints officials, which can include federal judges as the interim U.S. attorney statute states.
Statements from DOJ officials otherwise are “just noise and smoke to try to obscure the power grab here,” Whitehouse said.
Sen. Cory Booker, D-N.J., a member of the Senate Judiciary Committee, argued that the move to install Habba over the objections of New Jersey senators violates the constitutional balance of power.
“The Trump administration continues to want to violate the principles of the Constitution, violate the rule of law, trample upon the role of the judiciary and trample upon the role of the legislative branch,” Booker said. “Instead of working in a cooperative way, they’re trying to adopt a more and more authoritarian way.”
‘Not fit for that job’
Similarly, Sen. Andy Kim, D-N.J., argued that the Trump administration should not be able to “impose” Habba on the state.
“You know, she’s someone that has very clearly just shown and demonstrated that she is not fit for that job,” Kim said.
Democrats have argued that Trump’s U.S. attorney picks are uniquely unqualified compared to past administrations. Earlier this year, the Trump administration withdrew its first choice for U.S. attorney for District of Columbia, Ed Martin, after public Republican opposition.
Sen. Thom Tillis, R-N.C., pointed out that the Judiciary Committee also still subjects U.S. attorney nominees to the so-called “blue slip” — allowing home-state senators to weigh in on pending nominees. Allowing the administration to indefinitely appoint nominees despite home-state senators’ objections could go around that process.
“Maybe there’s a strategic calculation I just don’t understand. But I think it could be problematic for future Judiciary Committees, particularly when the Democrats have the gavel,” Tillis said.
Tillis said, though, that it could take years — after his retirement next year — for that dynamic to take effect.
Tillis said the moves could endanger some of the political comity that keeps the Senate functioning more broadly. Minority party members signing off on some nominees gives the majority “trade cap collateral” to keep the main floor of the chamber running smoothly.
“We always have to be careful about political physics,” Tillis said.
Amid this, Grassley hasn’t objected to the Trump administration’s workaround. “The Federal Vacancies Reform Act provides a mechanism to appoint acting U.S. Attorneys,” a Grassley spokesperson said in a statement, and Grassley has publicly backed the Trump administration request to cut short the August recess to move on nominees.
“If Pres Trump asks us to not take august recess im w him. Democrats hv been slow walking nominations We hv to make up for their wasted time Trump needs his administration in place,” Grassley posted on social media.
The strategy comes after Trump administration officials have agitated over the perceived slow pace of Senate confirmations in the second term. Even before Trump took office, he and members of his administration called for the Senate to allow more recess appointments, a move experts said would undermine the Senate’s ability to check the president.
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