One of the fundamental executive powers is the authority to prosecute criminal offenses. In the Constitution, specifically Article 2, there’s a mention of this power. Practically, the enforcement of laws against violators is handed over by the president to the attorney general, the Department of Justice, and 93 U.S. attorneys across the nation.
However, since President Trump resumed office last January, he and Attorney General Pam Bondi seem to struggle with staffing their team effectively.
Even as Washington navigates a slow process, U.S. prosecutors remain busy with their criminal prosecutions.
Out of approximately 50 nominees for attorney positions that Trump forwarded to the Senate, merely 19—less than half—gained approval by December 15. Interestingly, most of these went through in October, almost 10 months after Trump began his second term. On December 18, another 13 were confirmed at once, leaving 14 individuals still waiting for confirmation as the first year of his new term draws near.
A key reason for this delay lies with the Senate’s “blue slip” procedure. Essentially, without both senators from a nominee’s home state returning blue slips to authorize their nominations, those candidates go unconsidered.
This system, which initially aimed to gather insights from elected senators presumed to best understand a candidate’s qualifications, has now evolved, unfortunately, into a tactic used by Democratic senators to block numerous policies of President Trump.
Despite these Washington challenges, the duties carried out by U.S. prosecutors go on. The President has a constitutional obligation to ensure that laws are effectively executed, so it’s imperative that he assert control over these prosecutorial offices.
Obstruction of Democracy
The Constitution outlines a standard process for appointing attorneys, which involves presidential nominations followed by Senate confirmations. However, since U.S. attorneys are categorized as “inferior officers,” Congress permits the president alone, or the courts, to appoint them. This was made possible by allowing the attorney general to temporarily fill a vacancy with an “interim” U.S. attorney for a maximum of 120 days.
An interim appointee might remain in charge beyond this 120-day mark, but only with approval from the district court overseeing that jurisdiction. Notably, six interim U.S. attorneys faced rejections from their respective district courts: individuals such as Bill Esseri in California and Julian Murray in Delaware. Unsurprisingly, most of these courts are dominated by judges appointed by Democratic presidents, a trend cultivated by the aggressive “blue slip” strategies of Democratic senators in recent years.
For instance, the Nevada District Court includes seven judges, all appointed by either President Obama or President Biden. A similar pattern exists in the Northern District of New York. In New Jersey’s District Court, nearly all judges share a similar background. Even in the Central District of California, fewer than a third are Republican appointees, and in New Mexico, five out of seven federal judges were appointed by Democratic presidents.
Take Alina Haba, who prosecuted Rep. LaMonica McIver for obstructing Immigration and Customs Enforcement operations; she was disbarred by the New Jersey District Court after her interim period concluded. Similarly, Lindsey Harrigan, the interim U.S. attorney for the Eastern District of Virginia, faced disbarment after gaining high-profile indictments for alleged misconduct.
Bigger Obstacles
The Justice Department has announced plans to appeal these disbarments. One pressing question is whether the 120-day limitation on interim appointments should be accumulated or consecutive. In simpler terms, if an interim U.S. attorney resigns before the period is up, can another be appointed for an added 120 days, or does the new appointee only serve until the initial period concludes?
Historically, the latter approach has been common, but, given the current Senate obstructions, the president could find himself without anyone to execute essential executive powers. This poses a considerable threat to maintaining the effective execution of laws, highlighting a significant problem with Article II’s executive functions.
In fact, a larger hurdle for President Trump remains the inherent separation of powers within the legal system, which mandates district court approval after the 120-day period. While a provision in the Constitution allows courts to appoint lower-ranking officials, it doesn’t clearly indicate that Congress intended for courts to appoint prosecutors responsible for prosecuting cases.
Thereby, while the possibility exists for interbranch appointments, it raises serious questions about the distribution of powers, complexities the Supreme Court has increasingly scrutinized. Ultimately, if prosecutors enforcing the law aren’t chosen by the president, it complicates the execution of law enforcement.
A century ago, in the case of Humphrey’s Executor vs. United States, the Supreme Court upheld Congress’s limits on presidential powers to terminate executive officials. Present discussions suggest a shift may arise in the context of Trump’s case, potentially restoring significant control over the executive branch to the presidency. After all, the president remains the only directly elected individual within the entire executive framework.
In essence, if the past precedent of Humphrey’s Executor is called into question, there’s a legitimate basis to rethink allowing judges to appoint prosecutors to try cases before them—individuals wielding the executive function of prosecution.
