Federal prosecutors: Trumps bypassing strategy threatens the rule of law in the United States.

By Frederick T. Davis, former federal prosecutor and member of the New York and Paris bar associations

What is the role of the United States Attorney and how is it filled?

The United States Attorney is essentially the federal prosecutor whose office conducts criminal investigations, obtains indictments, and ensures the necessary legal proceedings for the effective application of federal criminal laws. There is a US Attorney for each of the 92 geographically divided “districts” nationwide, where they lead their own team responsible for the daily work of the office. In larger districts like New York or Los Angeles, the office may employ several hundred prosecutors. This role is particularly important as a federal prosecutor wields considerable power with significantly less judicial oversight than in France or most European countries. Federal prosecutors are responsible for enforcing and prosecuting significant federal laws related to terrorism, various forms of commercial and securities fraud, immigration, and other federal offenses.

The rules for appointing US Attorneys are precise and emphasize a key principle: the president cannot install someone in this position without the Senate’s approval unless on a strict temporary basis and for a limited duration. The essential structure of this procedure is enshrined in the Constitution, specifically in Article II, Section 2, which states that all “officers of the United States” must carry out their functions with the formal consent of the Senate (“advice and consent”). Relevant legislation empowers the president to appoint a US Attorney for each district “with the advice and consent of the Senate,” for a term of four years, with the incumbent being “revocable by the president.” This provision serves a partial but essential function in ensuring a certain degree of “independence” for federal prosecutors by allowing the Senate to reject a candidate whose loyalty would be aligned with the president’s partisan political goals.

In the event of a vacancy with no Senate-confirmed prosecutor, the “Preserving United States Attorney Independence Act of 2007,” passed in response to former President George W. Bush’s attempts to appoint prosecutors without Senate confirmation, allows the Attorney General to appoint an interim prosecutor — with a strictly limited 120-day term. At the end of this period, if no candidate has been appointed by the president and confirmed by the Senate, the district federal judges can designate a person to the position, who serves until a Senate-confirmed appointee becomes available. Until very recently, this procedure had sparked little controversy.

What has Trump done, and what decisions have the courts made?

What is the current situation, and what prospects are ahead?

The current situation is chaotic, to say the least, and it’s uncertain where it will lead.

In most districts, the US Attorney has been approved by the Senate, interim prosecutors are still functioning within the 120-day period, or candidates designated by the courts have been maintained by the Trump administration; in these districts, proceedings are proceeding as usual. However, in some districts, there is a real standoff where no one is serving as the prosecutor: the courts refuse to recognize Trump’s improperly appointed candidates, while Trump dismisses the substitutes designated by the judges.

At this stage, it is unclear how long this situation will last or its full extent. The issue arises because even if the courts agree that Senate-unconfirmed candidates cannot serve beyond 120 days and those appointed by Trump after this deadline lack authority and may be ousted, it does not resolve the complex procedural questions regarding the legal validity of actions taken in these offices during the impasse. Two of the most high-profile indictments — against former FBI Director James Comey and New York State Attorney General Letitia James — were personally signed by an improperly appointed prosecutor; these indictments were voided, though the Justice Department has appealed each nullification. So far, the courts have not invalidated indictments signed by substitute federal prosecutors, notwithstanding their nominal dependence on a prosecutor in an improper position or vacant role. However, the legality of such actions is far from established. Lawyers representing defendants in these districts understandably challenge the legality of most prosecution acts carried out under an illegal or non-existent prosecutor, and months or even years will be needed before a clear and definitive picture emerges. A judge has publicly warned that “dozens of dangerous criminals could see their cases dismissed or their convictions ultimately overturned” due to this issue.

The “rule of law” under Trump continues to raise puzzlement.