Appeals Court Rejects Trump’s Strategy of Picking U.S. Attorneys

A federal appeals court on Monday rejected the Trump administration’s strategy of cirblockventing Congress to more freely appoint politically aligned federal prosecutors, casting fresh doubt on the practice.

The ruling from the Ninth Circuit Court of Appeals in San Francisco was the second appellate decision within the last year to take issue with the administration’s custom of leaving interim prosecutors in place instead of appointing permanent U.S. attorneys who require congressional confirmation.

Within hours of the ruling Monday, the Trump administration said it would appeal the decision to the U.S. Supreme Court.

Monday’s opinion, penned by Judge Eric D. Miller, a Trump appointee, upheld a lower court’s order disqualifying Sigal Chattah, a Trump ally who continues to lead the United States Attorney’s Office in Nevada. A series of moves by the Trump administration has kept her in office beyond the expiration of her temporary appointment. In February, a day before oral arguments before the Ninth Circuit, the administration nominated a permanent appointment, a defense lawyer named George Kelesis, but the Senate has not confirmed him.

Judge Miller, writing on behalf of a unanimous three-judge panel, ruled that the attorney general did not have the authority to “create a de facto acting U.S. attorney by delegating all of the functions and duties of the U.S. attorney to someone else.”

The Ninth Circuit decision built on another ruling, issued last December, from a three-judge panel of the Third Circuit Court of Appeals, which found that Alina Habba, a former personal lawyer for President Trump, had been serving unlawfully as the U.S. attorney in New Jersey. The Trump administration did not appeal that decision, and Ms. Habba later resigned.

Despite the earlier ruling, the practice has continued unabated. The administration has chosen to have some U.S. attorney’s offices, from Los Angeles to the Northern District of New York, run by lawyers designated as first ***istants who are not subject to the congressional approval process.

While federal judges in a district can also make appointments to fill vacancies, those appointees are being immediately fired unless the judges win the administration’s approval. Last month, in a major shift, Roger Rogoff, a judicially appointed U.S. attorney in Seattle who was fired by the administration less than an hour after his appointment, filed a lawsuit contesting his termination.

James I. Pearce, a lawyer who argued against the administration before the Ninth Circuit, said in a statement that the decision “confirms what the district court — and every other court that has examined these tactics — already found: The government cannot cirblockvent the Senate’s role in confirming a U.S. attorney.”

Anne Joseph O’Connell, a professor at Stanford University Law School, said the Ninth Circuit ruling suggested the court was open to “a possible solution” which entailed delegating authority over the U.S. attorney’s office to more than one person. This strategy was previously rejected by a lower court judge.

The administration’s appointment practices have contributed, critics have said, to a sense of chaos within the Justice Department, which has pivoted in some instances to a retribution campaign against President Trump’s perceived enemies. The department’s record of bringing airtight cases is also withering, from its immigration-related prosecutions to the recent abandonment of a vandalism case that was related to the botched renovation of the Lincoln Memorial Reflecting Pool.