WASHINGTON — Federal judges wouldn’t be permitted to appoint U.S. attorneys to temporarily serve on courts while the Senate conducts its rigorous confirmation process under a new proposal being led by Utah Sen. Mike Lee.
Lee introduced legislation on Thursday that would give President Donald Trump the power to unilaterally appoint interim U.S. attorneys while his nominees are vetted by the Senate — a process that has experienced major delays by Democrats in recent weeks. The bill, Lee argued, would restore the president’s executive authority to appoint attorneys and avoid any conflicts of interest between judges and attorneys.
“President Trump deserves to pick the people working for him,” Lee said in a statement. “Judges shouldn’t get to choose the U.S. Attorney who will be arguing cases before them, just as they would never let a President name their law clerks. Congress took this provision out once before, and Democrats revived it to hamper the Bush administration almost 20 years ago. It’s time we restored this prerogative to the leader of the Executive Branch.”
There are 93 U.S. attorneys serving across 94 judicial districts who are selected by the president as political appointees. Those nominations must then be considered by the Senate through a series of confirmation hearings and votes before the appointee can assume the position.
However, that process can take weeks to complete. As a result, the attorney general is permitted to appoint an interim attorney for up to 120 days while the nominee is considered by Congress. If the nominee is still not confirmed by the end of that 120-day window, the district court itself may appoint a U.S. attorney to hold the seat until the vacancy is filled.
Over the last several months, Democrats have used almost all of their available tools to delay the confirmations of Trump’s nominees, creating a backlog that lawmakers may not be able to get to until after the August recess. Due to the ever-growing queue, the 120-day clock is expiring for some interim attorneys, putting the onus on district judges to fill the gaps.
While district courts have the ability to confirm the current interim attorney to continue his or her duties, there have been two high-profile cases in recent weeks where judges have declined to do so.
For example, the Northern District of New York last month refused to extend John A. Sarcone’s tenure as the acting U.S. attorney when his 120-day period expired in July. That prompted Attorney General Pam Bondi, who initially appointed Sarcone to the position, to utilize a judicial loophole to keep him in the temporary position.
Bondi used the same workaround in another instance in New Jersey when Alina Habba, a political adviser to Trump, had her tenure expire and the courts appointed a different attorney to serve in the position. Bondi later removed the new interim appointee and reinstated Habba under the Federal Vacancies Reform Act of 1998.
But those initial refusals angered many in Trump’s circles, motivating Lee to introduce the legislation this week.
It’s not clear if Lee’s proposal will have legs in the Senate, as it would require at least seven Democrats to break with party lines. Instead, Democrats have used all tools at their disposal to thwart Trump’s agenda, a tall task as the party does not currently hold a majority in any government branch.
Correction: An earlier version of this story said judges in several places where it should have said U.S. attorneys.