Victoria Bassetti, a fellow at the Brennan Center for Justice, leads a project reviewing U.S. attorney offices at the American Constitution Society.
President Trump has raised serious concerns over the past few months that he regards the Justice Department as his personal fiefdom, staffed by prosecutors and lawyers who bend to his will. Now, adding to those concerns, the Trump administration has the opportunity to entirely circumvent Senate review of many U.S. attorneys, thanks to a little-known law passed in 1986.
Under the statute, Attorney General Jeff Sessions can appoint interim U.S. attorneys for 120 days. When that time expires, courts have the power to appoint the prosecutor until the Senate confirms someone else for the spot, making the job term effectively indefinite. Indeed, the top federal prosecutor in Puerto Rico, Rosa Rodríguez-Vélez, was sworn in by a court during the Bush administration and still holds her post more than 10 years later.
Early last month, Sessions announced the appointment of 17 people as interim U.S. attorneys. Before that, he put seven interim prosecutors in place in late 2017.
The interim appointee who has drawn the loudest outcry is Geoffrey Berman, whom Sessions appointed as U.S. attorney for the Southern District of New York, often called the sheriff of Wall Street. This gives Berman direct jurisdiction over the president's business empire, including Trump Tower, the Trump Organization, the Trump reelection campaign committee and at least nine other Trump properties in Manhattan.
Unusually, Trump personally interviewed Berman. Berman also served on the presidential transition team and donated $2,700 to the Trump campaign in 2016. Before his appointment by Sessions, Berman was a partner at Greenberg Traurig, where Rudolph Giuliani, a prominent Trump supporter, is a member.
After Berman's appointment, Sen. Kirsten Gillibrand (D-N.Y.) announced she would attempt to block the nomination were the president to submit his name. But thanks to the 1986 law, Gillibrand's efforts may be fruitless. Berman could become U.S. attorney by May without his name ever being sent to the Senate.
Last month, Colleen McMahon, chief judge of the Southern District of New York, sent a letter to her fellow judges noting the possibility that the court could be called upon to appoint the district's U.S. attorney. The statute does not require that courts appoint the person who was named interim U.S. attorney, but district courts have historically approved whomever the Justice Department picks.
The Senate's role in confirming and evaluating the nation's top prosecutors is nearing a crisis point. In fact, all chief federal law-enforcement officers in New York, Florida and Michigan have been appointed by statute rather than with the advice and consent of the Senate. The same goes for two-thirds of the U.S. attorneys in Illinois and Louisiana and half of them in California. This trend pre-dates the Trump administration, with seven U.S. attorneys starting their jobs at the end of the Obama administration. Overall, a third of all U.S. attorneys have taken office as interim appointments and are poised to stay in office without any oversight from Congress.
The situation threatens more than institutional prerogatives. U.S. attorneys profoundly shape the administration of justice throughout the country. They have enormous discretion to bring public corruption cases, prosecute corporate wrongdoing or even investigate the president's business operations.
Consider Benjamin G. Greenberg, the interim appointee for U.S. attorney in the Southern District of Florida. Greenberg joined the Miami-based office in 2000 and has served as its second-in-command. He appears to be a perfectly respectable choice.
But as U.S. attorney, Greenberg has jurisdiction over Trump's business in Florida, and, in Miami alone, 63 people with Russian passports or addresses have spent almost $100 million at Trump developments, according to a Reuters investigation. How do we know that Greenberg would handle any investigation into the president's business objectively? How do we know Greenberg hasn't interviewed for the job with Trump? We cannot know without Senate review.
U.S. attorneys have enormous power and discretion. We have counted on them for centuries to dispassionately administer justice without favor or bias. But today, the way we ensure our U.S. attorneys are qualified is breaking down. We cannot allow the Senate to lose its key check on the nation's justice system.