Already, the department had a dearth of Senate confirmed nominees in leadership positions. While the top three posts are filled, the National Security Division, Criminal Division, Civil Rights Division, Tax Division, the Drug Enforcement Administration and others lack confirmed presidential appointees. A Justice Department official said the delays have been frustrating, particularly in the criminal and national security divisions.
"We desperately need them; we desperately need those two in particular," the official said. "We need them here, like, yesterday."
Some nominations have languished for months — even as Trump's party controls Congress. Justice Department veterans from both political parties say that void prevents the department from fully implementing its policy goals.
"To me, what's happening is reprehensible, not only in the Department [of Justice] but throughout government," said William Barr, who was the attorney general under President George H.W. Bush. "This is unprecedented. Anyone who has worked in an administration knows how damaging it is."
Trump has nominated people to fill several Justice Department spots, including the civil, criminal, national security and civil rights divisions, and many have already had confirmation hearings. They have yet to be put up for a vote by the full Senate, though. Trump also has nominated 58 U.S. attorneys, 46 of whom have been confirmed, and Sessions recently picked 17 more to serve in interim posts.
Legal analysts say the delays are more significant than others in recent memory. President Barack Obama's National Security Division head, for instance, was confirmed two months after he took office. His Criminal Division head followed the month after that.
Senate Majority Leader Mitch McConnell (R-Ky.) has blamed Democrats for using procedural delays to create a backlog of nominees across government. A spokesman asked for comment on this story pointed to McConnell's previous public statements on the matter.
"If this trend continues, it will take us more than 11 years to confirm the remaining presidential appointments," McConnell said in July. "Let me repeat that. More than 11 years. A presidential term lasts four."
Democrats say they are delaying nominees because of substantive concerns, and they argue that Republicans, too, have thrown up roadblocks.
"Given that it is the fount of the judicial system and the sensitivity of its mission, there is no department that needs more scrutiny than DOJ," said Sen. Charles E. Schumer (D-N.Y.), the highest-ranking Democrat. "There is bipartisan opposition to many of the nominees due to the lack of independence that many of the nominees and appointees have demonstrated."
Gardner is the latest Republican to raise concerns, though he himself had previously criticized Democratic obstruction of nominees. The Daily Beast reported that Sen. Rand Paul (R-Ky.) was holding up the confirmation of Boeing assistant general counsel John Demers to lead the National Security Division over concerns about his support for a government surveillance law.
Asked about that report, the senator's office responded: "Senator Rand Paul remains highly critical of warrantless domestic surveillance, and will use every tool available to him to push for much needed reform."
The Justice Department has assigned people to lead each division on an acting basis while waiting for permanent appointees. And Sessions has been one of Trump's most effective cabinet secretaries in implementing the president's agenda, imposing sweeping change at the department in a number of different areas.
Matt Axelrod, a former high-ranking official in the Obama Justice Department who is now at the firm Linklaters, said that while those in acting roles perform admirably, "everyone knows they're temporary, and that means that they don't have the same heft internally or externally as the Senate-confirmed heads will." He said the delay in approving Trump's nominees was particularly unusual because Republicans control Congress, and many of his nominees have been "mainstream Republican picks."
Demers, the National Security Division nominee, was a deputy assistant attorney general before joining Boeing. Brian Benczkowski, the Criminal Division nominee, is a white-collar lawyer at Kirkland & Ellis who had served in a variety of Justice Department roles and as staff director of the Senate Judiciary Committee. (Democrats have raised questions about his representation of a Russian bank.) Jody Hunt, the Civil Division nominee, is a Justice Department veteran who served as Sessions's chief of staff.