U.S. Attorney’s offices have been corrupted into “political instruments” under President Donald Trump, and as one legal scholar wrote for The Hill, a “dangerous loophole” in the law has allowed this problem to fester.
Jonathan S. Ross currently works as a visiting assistant professor at the University of South Carolina’s School of Law, having also previously served as the acting and court-appointed interim United States Attorney for the Middle District of Alabama. Writing in a new piece for The Hill on Tuesday morning, he warned that the Trump administration has exploited a dangerous loophole to exert influence over U.S. Attorney’s offices without properly confirmed leaders.
As Ross detailed, 10 of these 93 offices across the U.S. currently lack a leader, covering an area of the country home to around 43.2 million people, or around 12 percent of the population. They remain open, however, as “each office is being led by a first assistant U.S. attorney, despite there being no statutory basis for such an arrangement.”
“Congress provided that when U.S. attorney vacancies go on for long enough, it is up to the district court to appoint an interim prosecutor,” Ross explained. “[The Trump] administration has circumvented that provision by repeatedly firing the court-appointed attorneys (despite the president’s authority to do so being legally dubious, at best).”
He added further: “[A first assistant U.S. attorney] is usually a senior career government attorney. Several of those leading the 10 offices at issue do not fit this mold — seven are political actors brought in from outside of government. The administration has used this loophole to install its chosen picks to lead these U.S. attorneys’ offices, bypassing the check of Senate confirmation.”
Ross also highlighted an argument he will soon publish a piece about for the Wake Forest Law Review, in which he asserts that first U.S. attorneys cannot legally lead these offices, since their authority must derive from a U.S. Attorney proper.
“Today’s Justice Department takes the view that the powers of the roughly 6,300 assistant U.S. attorneys come directly from the attorney general. This position renders U.S. attorneys superfluous — figureheads who can be dispatched without consequence,” he added. “But why does this matter? Because the long tradition of quasi-independent U.S. attorneys’ offices, responsive to the needs and values of their communities, is being eroded. Although supervised by the attorney general, as fellow presidential appointees, U.S. attorneys have long been afforded wide latitude to make individual prosecutorial decisions (within the administration’s policy parameters). Those offices led by assistant U.S. attorneys are entirely beholden to the attorney general. This arrangement permits political actors to micromanage the offices for political purposes.”