I spent a good part of Saturday recording the 24th episode of the Progress Pondcast with Brendan Skwire (hopefully it will go live on Sunday), but one thing we didn’t talk about was President Trump’s announcement that he is making Fox News host Jeanine Pirro the interim U.S. attorney in Washington. The New York Times has an excellent explainer on why Pirro’s appointment is problematic.
Here’s the short version. The position of U.S. attorney is subject to senatorial “advise and consent,” or in other words it’s a confirmable position. Now, when there is a vacancy, as happened with the DC attorney position at the outset of Trump’s second term, the president can appoint someone to serve on an interim basis. Trump did this by appointing January 6 lawyer and political activist Ed Martin. He also sent Martin’s nomination to the Senate, but it was rejected without even getting to a vote.
An interim appointment can only serve for 120 days and if it goes any longer than that the position lapses and the district court assigns responsibility to handle cases until the Senate confirms someone.
Now, Pirro can be nominated to the Senate, but once that initial 120 days for interim appointees elapses she can’t serve until she has been confirmed. And Trump hasn’t sent her name to the Senate. Instead, he’s just named her to replace Martin as acting DC attorney.
There’s a difference between “interim” and “acting.” An acting position is permissible but only if the acting person is already “serving in another Senate-confirmed role” or has “been in a senior position at the same agency for 90 days before a vacancy.” Neither of those requirements are met by Pirro. So, effectively, Trump is saying he is allowed to appoint successive “interim” attorneys.
This isn’t just illegal. If Pirro oversees any cases or grand juries, those cases and indictments can be challenged and thrown out because she isn’t properly serving in the position.
There are loopholes that Trump is trying to drive a truck through. For example, he technically “fired” Martin before 120 days had transpired, so now he wants to say that the clock can start fresh and Pirro can get another 120 days. And if the district court opts to name their own officer to fill the position, Trump insists he can fire them and then appoint Pirro. This is all completely contrary to the spirit of the statutory language.
The basic idea is that we don’t want U.S. attorney positions to be vacant because justice must continue at all times. But, we also don’t want presidents to have a way of getting around the fact that the Senate must confirm U.S. attorneys.
If Trump gets his way, there will be nothing to prevent any future president from just making a succession of interim appointments rather than submitting nominees to the Senate.
It looks like the Supreme Court will have to weigh on this eventually, in another of a long series of cases they’ll be hearing on Trump’s effort to make himself a dictator who doesn’t answer to Congress or the courts. I wish I knew how they will rule, but I just don’t have that much confidence in the Supreme Court to maintain the separation of powers.
