Under normal circumstances, senators might act quickly to advance and confirm a president’s nominees to be U.S. attorneys across the country.
But with President Donald Trump in office, nothing is proving to be ordinary.
The abrupt dismissal of 46 holdover U.S. attorneys from the Obama administration, and confusion over the way it was done, could set the stage for a protracted political struggle. Senate Republicans seeking to replace the fired attorneys could face determined resistance from Democrats who may try hard to slow down the process.
When news broke Friday that the attorneys had been asked to resign, Senate Judiciary ranking Democrat Dianne Feinstein was quick to make public that she had been previously told by White House Counsel Donald McGahn that there would be an orderly process for replacing the prosecutors.
White House Press Secretary Sean Spicer said Monday it was “standard practice” for a new administration to ask for the resignations of political appointees in the Justice Department and other federal agencies.
Democratic Sen. Sheldon Whitehouse, a member of the Judiciary Committee who was once the U.S. attorney in Rhode Island, expressed concern late Monday that Attorney General Jeff Sessions may not have been fully involved in the decision-making process that led to the reported calls by acting Deputy Attorney General Dana Boente to seek the resignations of U.S. attorneys nationwide.
“The president has the right to call for those resignations. It’s just a little bit disturbing how chaotic and unexpected it was, particularly since the attorney general evidently was talking to them all as if they would be continuing colleagues just two days beforehand,” Whitehouse said. “Which makes you wonder, if the attorney general was not in the loop, who was making this call and why?”
But like Whitehouse, Feinstein was aware that she did not have much in the way of recourse, given the prerogatives of the president in making appointments.
“There’s nothing we can do. This is the president’s right. He can do this,” the California Democrat said Tuesday. “I was under the impression that it was going to be done in an orderly fashion rather than sort of pell-mell, the way it was, but there’s precedent for it.”
Feinstein said she expected the Trump administration would consult with her on replacement attorneys for the four federal judicial districts in her home state.
“That’s been the way it’s been for a quarter of a century. The senators make nominations to the president, they send a couple of candidates up, and the president makes a choice generally,” she said. “I’ve had a screening committee in each of the districts made up of Democrats and Republicans — open, anybody can apply — and they interview and they talk to the bar associations.”
In states with only senators from the opposite party to the president, senior House members have also been involved in making recommendations, a situation playing out in Illinois in a way that is causing concern for Democratic Sens. Richard J. Durbin and Tammy Duckworth.
Durbin and Duckworth sent a letter Tuesday to Illinois GOP Rep. John Shimkus, recalling a conversation just before Trump took office in which the senior Republican said he planned to consult with the new administration before reviving the delegation’s bipartisan process.
“We are prepared to continue our discussions with the goal of re-establishing a bipartisan process to identify and recommend candidates for whom we would be willing to sign affirmative blue slips,” Durbin and Duckworth wrote. “After President Trump’s firing last Friday of 46 U.S. attorneys, including Northern District of Illinois U.S. Attorney Zach Fardon, there is a timely need to provide Illinoisans with clarity on how the process for recommending nominees will move forward.”
With some exceptions, the Senate Judiciary Committee has traditionally required both senators from a nominee’s home state to return what’s known as a “blue slip” in order for the panel to process the more routine, lower-level nominations.
In the post-nuclear option era, when executive branch and most judicial nominees no longer need a filibuster-proof 60 votes, Trump and Sessions could theoretically exclude home-state Democratic senators from the process of selecting U.S. attorneys and U.S. marshals. Doing so, however, could lead to prolonged vacancies that leave career government lawyers in charge of day-to-day decision making about legal issues.
That’s because a nominee for each of the vacant U.S. attorney posts from New York City — where Preet Bharara tweeted Saturday that he was fired after refusing to submit a resignation letter — to rural districts that cover entire states must be confirmed by the Senate and Democrats could slow down each of them.
Given the current pace of confirmations, that’s not out of the realm of possibility.
Bharara, who had been U.S. attorney for the Southern District of New York since 2009, was probably the most visible federal prosecutor who was asked to resign. He led a series of investigations related to political corruption in Albany and New York City, as well as on Wall Street.
Bharara posted on Twitter on Saturday that he “did not resign. I was fired.”
“Preet Bharara has been an exemplary U.S. attorney for the Southern District of New York. His relentless drive to root out public corruption, lock up terrorists, take on Wall Street, and stand up for what is right should serve as a model for all U.S. attorneys across the country,” Senate Minority Leader Charles E. Schumer said Saturday. “He will be sorely missed.”
The firing of Bharara, a former senior aide to Schumer, was the most notable because he had met with Trump during the presidential transition last year, and later indicated he had been asked to stay on the job.
But the concerns about the abrupt U.S. attorney resignations are by no means the only issues facing members of the Senate Judiciary Committee. Also included are confirmation hearings for Judge Neil Gorsuch to be a Supreme Court justice, scheduled for next week.
And in responding to a question about the decision by the White House and attorney general to request resignations from the prosecutors, Vermont Democrat Patrick J. Leahy, a former Senate Judiciary chairman, brought up another matter altogether, but no less incendiary.
“If he has time to do that, I keep asking — Attorney General Sessions is the one person who knows whether the president told the truth when he said that former President [Barack] Obama wiretapped him, and amazingly, he hasn’t said a word one way or the other,” Leahy said. “He could definitively say, ‘Did Donald Trump tell the truth or not?’”
Add it to the list of issues threatening the functioning of what was once an orderly confirmation process.