LA Prosecutor’s Contested Status Casts Shadow on District Cases

Los Angeles defense attorneys are bracing for delays and uncertainty as a motion to disqualify their district’s acting US Attorney, Bill Essayli, is pending before a federal judge.

The challenge to Essayli’s post—which echoes a fight over Alina Habba‘s position in New Jersey—opens a new front in the legal fight over the authority of President Donald Trump and his administration to install US attorneys without deference to local leaders. The issue is novel and will likely end in a showdown at the US Supreme Court.

In the meantime, other lawyers are expected to file similar challenges to Essayli’s authority to prosecute their cases. Such motions will cause delays at a minimum.

In New Jersey, the situation has become chaotic after a federal judge ruled Aug. 21 that Habba is ineligible to serve after she was appointed as acting prosecutor under circumstances similar to Essayli’s. Three defendants in the District of Nevada challenged the acting appointment of Sigal Chattah following that ruling, according to the motion to disqualify Essayli.

Trump hasn’t put Essayli’s appointment before the US Senate, where he’d need backing from Democratic California senators to advance under the “blue-slip” custom.

Dozens of prosecutors departed after Essayli took the helm in the Central District of California, and many said, speaking to Bloomberg Law under conditions of anonymity, that Essayli’s disregard toward DOJ rules is why they left. The office said in July the allegations are based on inaccurate and misleading information.

John Littrell, managing partner of Bienert Katzman Littrell Williams LLP, said new motions to disqualify Essayli are likely to derail or slow Los Angeles prosecutions. Prosecutors might also consider delaying indictments until the question of Essayli’s authority is decided.

“Defense attorneys are ethically obligated to vigorously defend their clients by filing meritorious motions,” said Littrell, who specializes in white collar defense and investigations, in an email. “I expect there to be many more challenges along these lines.”

Essayli’s office didn’t respond to a request for comment.

Twists for Habba, Essayli

The decision that Habba is ineligible, because of the position she held when the top prosecutor post became vacant, was put on hold by a federal appeals court. If it stands, Habba wouldn’t be able to lead or be part of prosecutions in her district.

New Jersey prosecutors have reported that initial appearances are occurring, but some judges are declining to conduct arraignments before the question of her authority is resolved, and trials may be suspended.

The twist in Habba’s case is that a panel of New Jersey federal judges appointed a different prosecutor to the top post in her district after her interim period expired, setting up a direct clash between potential leaders.

The situation is different for Essayli, who stepped down as interim US attorney before immediately assuming an acting role. After Glenn Beck asked in a July 22 radio interview if Essayli was out of a job at the end of his interim period, Essayli said, “We’ve got some tricks up our sleeves.”

“In Los Angeles, the twist is how calculated this was admitted to be,” said Laurie Levenson, a criminal law professor at Loyola Law School.

“It’s not exactly what happened in New Jersey, but it certainly has echoes,” she said.

Appointment Statutes

The federal public defenders, who asked that their client’s August unlawful possession of a firearm indictment be dismissed, argue that there is no statutory authority for Essayli to hold his position.

Broadly, they argue the Federal Vacancy Reform Act doesn’t apply because it was displaced by his 120-day interim appointment under 28 USC §546, according to Jessica Levinson, a constitutional law professor with Loyola Law School.

Alternatively, if the FVRA does apply, they argue that Essayli can’t be reappointed under its terms—or, allowing him to stay in place would violate the appointments clause, Levinson said.

“I don’t know whether we have a specific answer on whether you can reappoint and how many times,” Levinson said.

Levenson, the criminal law professor, said Essayli’s office is likely to argue that this is an issue of first impression and courts should give deference to the Justice Department’s discretion.

They may say Essayli’s procedural maneuver was a technical violation, not one rising to a level that should put indictments at risk, she said.

“This administration has been very aggressive in pursuing the position that the President should have an unrestrained power to hire and fire executive branch officials,” said Brown White & Osborn LLP founding partner Kenneth White in an email.

“That’s long been a project of conservatives, but the Supreme Court, particularly through the shadow docket, is now endorsing it,” he said, “and there’s some doubt about whether the statutory framework limiting US Attorney appointment and replacement will survive.”