Wednesday Morning Rant

One constant motivation in the current Trump Administration has been pushing hard on defining - or redefining - who can be summarily fired by the executive. The Administration's stance is, essentially, "anyone, for any reason or no reason at all." This came to a head - in part - with Trump v Slaughter last month, where the Court did away with Humphrey's Executor. The win was not total, but it was a step in the right direction. Outside of court cases - though ironically not outside the courts entirely - the Administration is cracking down on external meddling in executive affairs.

This year, Trump has taken consistent and immediate action against one of the more pernicious forms of meddling, which is the appointment of US Attorneys. Federal prosecutors are appointed by the president and confirmed by the Senate. If there is a vacant position, however, the Attorney General can appoint an interim prosecutor for a 120-day term. If that expires and there is no replacement, the district court judges for the district involved can appoint their own interim prosecutor. This looks like a cascading system to ensure continuity, but it has become a mechanism of subversion. Trump is cracking down on it.

The way this has worked in the past, what with "comity" and all that jazz, is that when there is a vacancy, the district court would consult with the Attorney General and appoint someone tolerable to the Administration to the interim job. That was tradition, not law. As with all comity-based traditions, it ceased to exist under Trump. This law became a means of subverting the appointment of US Attorneys. If the president can't get his man in place in time - and the Senate is quite good at slow-walking things when they want to, or just outright rejecting confirmations and "comity" be damned - then the district court gets to appoint their own man instead. This is a nice, neat and legal means of completely end-running the executive.

While there is nothing to stop the district court judges from putting their man into place without any oversight, Trump has made it clear that this does not mean that he is powerless to intervene in this process. The process has now changed in fact, though nothing has changed in law. It now goes like this:
1. A US Attorney vacancy opens
2. The 120-day period expires
3. The district court judges appoint their man as they see fit
4. Trump fires the newly-appointed USA before he can start work

Though Trump has been aggressive in extending the "I can fire anyone I please, anytime I please" operating environment as far as possible, the President has the authority to fire US Attorneys anyway. He is making an example of these interim US Attorneys, and is on his third firing this year. Back in February, it happened twice. On February 12, the Northern District of New York appointed their man, Donald Kinsella to a vacancy created when a federal judge ruled that Trump's choice, John Sarcone, was in the role unlawfully. Kinsella was fired by email before he could start work.

Days later, another district court tried the same play, this time in Virginia. On February 20, the Eastern District of Virginia appointed their man, James Hundley, as US Attorney. They did so without discussing anything with the Administration, taking the opportunity to slide their preferred prosecutor into the position. They appointed him and swore him in and then, hours later, he was fired. Acting Attorney General Blanche announced it on X:

Here we go again. EDVA judges do not pick our US Attorney. POTUS does. James Hundley, you’re fired!

Twice may not make a trend, but it didn't stop there. Last week, a district court tried the same play yet again, this time on the other side of the country. After the existing interim US Attorney's term expired, the Western District of Washington appointed and swore in their man, Roger Rogoff, to replace Trump's interim prosecutor Neil Floyd. Like before, the President fired the new interim US Attorney within hours of his appointment by the district judges. The Western District of Washington may have done this deliberately to make a test case after what happened in New York and Virginia. Per The Hill:

Rogoff has reportedly retained legal counsel that specializes in employment law, setting up the possibility of a formal legal challenge that could set the stage for the courts to settle the bounds of presidential power over U.S. attorneys.

posted by Joe Mannix at 11:00 AM

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