At the Volokh Conspiracy blog, Paul Cassell and Steven Calabresi have had a valuable and interesting series of posts examining and debating the Trump regime’s use of aggressive use of various statutory mechanisms to retain interim and acting U.S. Attorneys and push against district court judges’ own refusal, also statutorily authorized, to extend those individuals’ interim terms following their 120 days of service. There has also been useful discussion at Jack Goldsmith’s Executive Functions page by Goldsmith and Anne Joseph O’Connell. I have found the VC posts worthwhile and happily recommend them. (Given that the blogger who used to be the VC blog’s most prolific writer on the law and policy of the executive branch and the Constitution has essentially stopped writing in that space about the law and policy of the executive branch and the Constitution, and has spent this “transformational” moment focusing almost exclusively on the law of federal courts, they also fill a useful and curious gap at that blog.) I do not have much quarrel, based on what I have read there and elsewhere, with the general point that just because the regime is playing “tricks,” in the words of the lamentable U.S. Attorney for the Central District of California, that does not make those tricks unauthorized or unlawful. Power and wisdom are two different things.
I wonder if I might suggest, however, that at some point the discussion of the interim U.S. Attorneys risks becoming a emptier than it should be, absent some obvious context. After all, wisdom is hardly irrelevant or unimportant. I would suggest a couple of pieces of context. Both are consistent with a more general argument I have been making here: Talking about power without talking about duty renders separation of powers and unitary executive talk, especially outside the courts, rather sterile. The urgent small-c constitutional question of the moment is not simply what powers a “unitary executive” has, important as that is, but what basic criteria of responsibility, honor, and duty ought to guide him in wielding that power, according to that (or any) vision of the executive branch. Of course, my view is that the regime clearly fails to meet most such criteria. But I would be content if pushing this general point simply served as an encouragement of discussion (including disagreement as to particulars)–especially by the legal conservatives who have been most active in developing these lines of scholarship and argument, and thus ought to be in a position to contribute most to the discussion without fear or favor.
The first bit of context is that surely, at some point, one must consider the actual individuals on whose behalf such prodigies of time and effort have been expended. Take John Sarcone, the Acting U.S. Attorney for the Northern District of New York and the first beneficiary of these efforts. Sarcone, a lawyer and Trump supporter from upstate New York, served a standard patronage job in the first Trump administration and, during the Biden interregnum, ran unsuccessfully for state attorney general, withdrawing before the Republican primary. (As Roll Call and others noted even before the inauguration, Trump 2.0 appointment policy tends to heavily favor political losers.) In March, he was named interim U.S. Attorney for the Northern District of New York. At that point Sarcone had practiced law for a couple of decades and spent roughly zero years in criminal law.
Last month, while serving as interim U.S. Attorney, Sarcone alleged that “a maniac with a knife who was speaking in a foreign language” had threatened him, and pushed law enforcement authorities to charge the man with attempted murder. Surveillance video showed that the man had indeed approached Sarcone menacingly but that, per the Times, “contrary to the accounts of Mr. Sarcone and the U.S. attorney’s office, [he] did not come close to Mr. Sarcone.” The next paragraph in the Times account is a doozy: After that imbroglio, The Albany Times Union reported that the address that Mr. Sarcone had listed in a police affidavit as his residence in the city was in fact a boarded-up building. In response, the paper reported, Mr. Sarcone instructed his staff members to remove The Times Union from his office’s distribution list. Why give that address, you may wonder? Well, doubts had already been raised about Sarcone’s eligibility to serve in the office. The statute requires that he live within the district, but his residence prior to the appointment was in Westchester. Sarcone’s answer to the question why he had given the address he did can be found here and is, I would say, just possible but also distinctly…interesting. I doubt that many reasonable people would cavil much at the suggestion that Sarcone does not seem any more qualified to serve as a U.S. Attorney, let alone a “special” attorney in the Justice Department, than, say, I am qualified by virtue of my status as a wonderful amateur drummer to take over the recently-vacated drum chair for Pearl Jam. Less so, I would suggest, given that my only shortcoming is lack of talent; unlike Sarcone, I’ve taken no affirmative steps to strongly suggest my unfitness for the job. Sarcone’s nomination was only dubiously defensible in the first instance. The remarkable thing is the degree to which, with hard work, dedication, and a last known address, he made it even more dubious during his tenure as interim. The other individuals on whose behalf these efforts have been expended are equally interesting. Alina Habba was primarily a civil litigator with no prosecution experience, little relevant federal courts experience, and little or no federal criminal experience. She did, however, have a golf club membership. The entrée that provided to the Trump orbit secured her work on a number of matters for Trump during the Biden years, generally unsuccessfully, often ridiculously, and sometimes sanctionably. She did, however, find time during the runup to the inauguration to praise an alleged sex trafficker. (No, not that one; it was Andrew Tate.) Politico fairly noted of Habba’s tenure as interim that “keeping politics out of her day job appears to be somewhat of an ongoing challenge for the first-time prosecutor.” Sigal Chattah, newly redesignated by the regime as acting U.S. Attorney in Nevada and special attorney to the Attorney General, at least had criminal experience. More importantly, she had two other qualifications. She was a political loser, having lost the race for state attorney general. (Her defeat was attributed in part to the leak of a text saying that her opponent in that race “should be hanging from a fucking crane.” Her primary defense of the statement was that, hey, she talks about hanging people from cranes all the time; it’s just “part of my vernacular.”) And she was associated with the regime’s official Big Lie, that the election of 2020 was stolen, having defended one of Nevada’s accused fake electors. Bill Essayli, now acting U.S. Attorney for the Central District of California, likewise had criminal law experience, both state and federal, for which he deserves full credit, and he actually succeeded in state electoral politics. Essayli’s problem is his actual record in the job. It has famously been said that a grand jury will indict even a ham sandwich. True–unless the ham sandwich is facing off against Bill Essayli. His rallying cry is “Fuck the Justice Manual!” He pushes cases that not only grand juries and career prosecutors, but also the FBI agents on the ground, find lacking in sufficient evidence. (One possible problem: All the false reports from Homeland Security agents.) And–having waited until his new workaround position was in the bag–he drops cases a prosecutor has no business dropping. Concealing millions of dollars from the IRS and possessing a gun despite being a convicted felon are still illegal, I am given to understand, even where the accused is a Trump donor and even if Essayli, unaccompanied by the lawyers on the case, has taken a private meeting with the accused’s lawyers. Those charges have now been dismissed, without explanation and, of course, without prejudice. Similarly, with his office already having secured a conviction and sentence in the case of a police officer for assaulting and pepper-spraying a woman who was filming an arrest, Essayli, acting on the basis of no new evidence, first sought to dismiss the felony charges–leading to the resignations of several career prosecutors in the office–and now is seeking to dismiss the case altogether. (The Trump regime has been pretty clear since January that in a tussle between the slogans “Back the Blue” and “No one is above the law,” “Back the Blue” trumps, so to speak. This is why the notion that the regime is conservative and is not authoritarian is risible.) Surely, at some point, in thinking and talking about what powers of appointment Trump has under existing law and what statutory or separation of powers limits ultimately do or don’t apply, it’s worth at least mentioning who he is not only appointing, but upsetting convention and spending time and effort (in a Justice Department that is hemorrhaging lawyers who are already overtaxed with other work) to retain. I don’t mean to suggest that those formal powers and limits are different depending on whether the nominee is a good lawyer. If an imaginary president wanted to drive up social media engagement and decided to hold a contest for Most-Sanctioned, or Least Qualified, Lawyer in America, with the prize being an appointment as an interim U.S. Attorney, I imagine he could do so–it’s unfortunate that the hypo seems nowhere near as crazy as it should–and then proceed to the workarounds when sensible senators and judges rebelled. But I can’t imagine that the absurdity of the choice wouldn’t even come up in the course of discussion. As we discuss the interim U.S. Attorney appointments, of course we should at some point consider that these efforts are being exerted on behalf of a remarkable rogues’ gallery of the unqualified and the “qualified” but dishonorable. That’s even more true for another reason: the regime has other options available to it. Its accusations against district court judges who have refused to swallow the particular appointments they were urged to extend are baseless. But the regime which enjoys a majority in the Senate that has shown its willingness to pass legislative proposals and ratify bad decisions. It could easily have pushed to amend the statute providing for interbranch appointment in the event that an interim appointment runs out. It could have reprioritized and secured confirmations sooner instead of assuming the judges would rubber-stamp its choices. (It should be noted that, in both his first term and the current one, Trump’s pace has historically been slow when it comes to nominating U.S. Attorneys, among other offices. The analysis of the propriety of the current workaround maneuvers should at least consider the possibility that it is less a response to “resistance” than it is a stopgap remedy for poor executive management.) More importantly, the regime could make better appointments. Not every interim U.S. Attorney in this go-round has encountered the kind of reluctance these individuals have, and for good reason. Subject to statutory qualifications, presidents have a right to appoint whoever they want to offices that require advice and consent. But they are not barred from actually accepting good advice about whom to appoint. Their freedom to appoint includes the right to make sound and uncontroversial appointments as well as questionable ones. It certainly includes the right to make sound, uncontroversial, and boring follow-up appointments when, for example, the judges of a district indicate their discomfort with someone like John Sarcone. I imagine some presidents, especially those who are pushing an aggressive agenda and have pledged in particular to bring active in law enforcement, might even want to make appointments that would enjoy a greater level of trust from the judges they argue in front of every day. Even leaving aside the workarounds, I dare say it actually takes less effort to find, appoint, and defend a good prosecutor than an under-experienced, dubious, in some cases downright bizarre one. And this, too, is a choice within any president’s powers. This regime has a tendency to confuse the proposition that the president can appoint whomever he likes with the proposition that he should appoint anyone he damn well pleases; that personal loyalty are more important criteria than a record long on staid professionalism and short on Twitter rants; and that legitimate pushback on obviously questionable choices, of the sort that any conventional group of intelligent people would make, is necessarily some sort of rebellion or treason. That tendency is all too characteristic of the personalist worldview that colors everything Trump does. Regardless: the proposition that executive branch appointees must be chosen by the president does not require that anyone else approve of or facilitate those choices, and it doesn’t prevent well-managed executives from engaging in the kinds of compromise–if you call not appointing or reappointing someone like Sarcone a compromise; I don’t–that are entailed by a system that is designed to moderate the will and passions of officials. There is a third, more speculative piece of context to add. Those who are interested in the general issue might have different responses if such workarounds became routine rather than exceptional. Trump has been pressuring Senate Judiciary Chair Charles Grassley to ram through judicial and U.S. Attorney nominees and get rid of blue-slip practices, which is his right (as is Grassley’s taking umbrage at the pressure campaign), and he may get the confirmations he wants on something like the schedule he wants. But one gets the sense that he views the “consent” part of advice and consent as something that is an inconvenient formality at best and an outrage at worst. And not just in this area. Trump is not the only president to lean unduly on acting appointments for executive branch officials. But I don’t think it would be either out of character or out of the realm of possibility for him, or his enablers, to decide that wherever possible and for whatever office is possible, perhaps excepting judges, he should simply find ways to work around advice and consent for any Article II officers. I don’t think he cares a lot about balances and I’m quite certain he’s not crazy about being checked. As I say, this is speculative and I hope I’m wrong. (I also hope that the Senate shows more willingness not to endorse gross errors like the confirmation of Hegseth, Kennedy, and Gabbard, all of whom gave the majority pause. But at least the process was observed.) But I don’t think I’m so wrong that the general concern doesn’t belong, along with a consideration of who he is selecting and the alternatives he already has, as part of the context of the U.S. Attorney workaround discussion.
Posted by Paul Horwitz on July 30, 2025 at 05:01 PM
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