The White House has struck tentative agreements with more than a dozen senators on picks to fill U.S. attorney positions left vacant since early March, according to officials at the White House and on Capitol Hill.
White House chief counsel Don McGahn has spent much of the past three weeks meeting with senators and their staff, the officials say. The administration hopes to announce some of the appointments in the next three weeks, according to three people familiar with their thinking.
President Donald Trump removed almost all of the sitting, Obama-appointed U.S. attorneys in a Friday afternoon purge in March, in a highly unusual move that’s left federal prosecutors’ offices under the supervision of acting U.S. attorneys since then.
As with other political appointments, the Trump White House has been slow to fill the vacancies.
“That was an unfortunate decision that could have been more discerning and made….with a scalpel instead of a meat axe, especially because they didn’t have nominees in the pipeline,” said Ronald Weich, the Justice Department’s top legislative liaison under President Barack Obama and now dean of the University of Baltimore School of Law.
“The acting US attorneys will follow direction, but will not be as committed to the president’s agenda as Senate-confirmed appointees,” he added.
Yet it’s still likely to be months before appointees can be confirmed, according to longtime observers and former U.S. attorneys. Appointees have to be screened and vetted by the FBI, and the Senate has to schedule hearings.
“The problem is the convergence of judicial vacancies and all executive branch vacancies, so there’s only so much the FBI can do every week,” said one lawyer involved in the process. “On top of that, there have been some rumors that the Judiciary Committee doesn’t have capacity to move quicker than it historically has, which historically has only been a few nominations per week. It’s just frustrating but it’s hard to get things through the process.”
The White House didn’t respond to a request for comment.
Democrats are also threatening to slow the process, according to people familiar with the talks. While the filibuster has now been completely dismantled for both judicial and executive branch nominees, senators retain an effective veto over U.S. attorney, judge and marshal nominations in their states through a Senate procedure known as the blue slip.
The century-old practice allows either of a state’s senators to effectively block a nominee by failing to return the so-called “blue slip.” Recent Senate Judiciary Committee leaders have generally declined to hold hearings on nominees until the blue slip is returned. As a result, presidents have rarely nominated U.S. attorneys or judges without the advance consent of both home-state senators.
The process has sometimes led to senators setting up committees or more informal arrangements to recommend potential judicial and U.S. attorney candidates in their states, so the nominees would essentially be pre-cleared.
It’s unclear whether Trump’s White House has blessed any such arrangements yet, but the easiest vacancies for the White House to fill could be those in red states where both senators are Republicans.
While the blue slip policy has sometimes been bent to allow confirmation of judges, particularly at the appeals court level, Victoria Bassetti, a former Judiciary Committee staffer, said doing so to get U.S. attorneys in would be highly unusual.
“Appointing a U.S. attorney without the blue slips is considered a no-go zone. You better get both blue slips when it comes to U.S. attorneys,” she said.
Trump cares more about some picks than others. None are more important to him than the U.S. attorney posts in Manhattan and Brooklyn, two of the most prominent offices in the DOJ, which are known for handling white-collar crime and terrorism cases.
The Manhattan office, which oversees the Southern District of New York, was previously headed by Preet Bharara, who was the only U.S. attorney fired in March, after he refused to resign. He’d visited Trump Tower in November, after the election, and had said that Trump promised him he’d be able to remain in his post.
White House officials and outside advisers with a crucial say in the picks, like former Mayor Rudy Giuliani, are still talking to candidates for the two New York jobs.
Giuliani didn’t return a call for comment.
The White House also hopes to announce at least 10 judges in the next two weeks, according to people familiar with the deliberations.
The federal court system currently lists 119 vacancies at the district and circuit courts, including 49 judicial emergencies—long-term vacancies in courts facing serious caseloads. The longest vacancy, in the Eastern district of North Carolina, has been unfilled for more than 11 years.
Trump’s first judicial nominee was a crucial one: the selection of 10th Circuit judge Neil Gorsuch for the Supreme Court. He was confirmed earlier this month.
So far, Trump has tapped only one other judicial nominee. Amul Thapar is scheduled for a hearing Wednesday before the Senate Judiciary Committee. Thapar, a former aide to Senate Majority Leader Mitch McConnell, has been nominated to a slot on the Cincinnati-based 6th Circuit Court of Appeals.
One potential hang-up for the U.S. attorney nominees could be the lack, until this week, of a permanent No. 2 official at the Justice Department. Trump’s choice for deputy attorney general, Rod Rosenstein, was confirmed by the Senate, 94-6, on Tuesday afternoon.
Rosenstein may wish to have sign-off on the U.S. attorney nominations since the deputy attorney general effectively serves as their boss in the Justice Department hierarchy.
Bassetti said it’s still unclear how the prosecutor jobs or judgeships in most states will be handled under Trump and whether mechanisms used during the Obama era—like state-level commissions to vet nominee—will be kept in place.
“It’s open to renegotiation every 2 years,” she added. “Every single one of them is a jump ball right now.”
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