Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Welcome
Go
Free Newsletter Sign Up

Big US Cities Lack Chief Federal Prosecutors Amid Crime Concerns

June 1, 2022, 8:45 AM

Seven of the 10 largest American cities and just over half of the 94 federal court districts overall lack Senate-confirmed US attorneys amid concerns over rising crime.

The vacancies of US attorneys, who function as their region’s chief federal law enforcement official, are largely in red states where Republican senators can complicate appointments. Yet, California, which is represented by two Democratic senators, also lacks US attorney nominees in three of its four districts, including those encompassing San Diego, San Francisco, and Los Angeles.

President Joe Biden has nominated 28% fewer US attorneys than Donald Trump had at this point in their tenures. The slower pace surprises former occupants of the job, particularly as Republicans make crime a focus of efforts to seize control of Congress.

“I know they’ve made up some ground, but as we get closer to the midterms, it’s kind of shocking to me, given how important those people are as your field generals, that more hasn’t been done.” said Zachary Terwilliger, a partner at Vinson & Elkins and a former US attorney in the Eastern District of Virginia under Trump.

There are a variety of factors that might explain the slow pace of US attorney nominations. Negotiating a compromise with senators from the opposing party can take time. Home-state senators get to sign off on nearly all US attorney nominations through the blue-slip process, which can effectively block their advance. The slots are also generally less of a priority than lifetime judicial appointments and some Cabinet agency posts.

Even when a potential nominee is identified, FBI background checks can take months.

“Confirming deeply qualified US attorneys is a high priority for” Biden, “and he looks forward to naming more in the near future,” Andrew Bates, a White House spokesman, said in a statement.

Red State Delays

Home-state politics and variations in how senators screen candidates can also muddle matters, as appears to be the case in the Southern District of Florida.

In February 2021, Sen. Marco Rubio (R-Fla.) backed the White House favorite to head the Miami office, Haitian-American attorney Markenzy Lapointe, according to a Rubio spokeswoman who cited a Miami Herald article.

Rubio’s counterpart, Sen. Rick Scott (R-Fla.), has established a separate screening commission for US attorneys and judges, and his office has not given public support to Lapointe.

“Senator Scott has made clear he is willing to work with the White House to identify qualified individuals to serve in these important positions in Florida,” said his spokeswoman, Clare Lattanze, said a statement. “Any such nominee must have a strong commitment to enforcing the law and holding criminals accountable in order to keep our communities safe.”

North Carolina proves that politics don’t have to impede appointments of the 35 US attorney vacancies in states with at least one GOP senator. The state’s two Republicans made recommendations last year that “were among the first we received,” said a Democratic aide to the Senate Judiciary Committee. The Senate confirmed chief prosecutors for all three North Carolina districts last November.

The majority of US attorney vacancies are from red or purple states, “and to the extent that Republican senators are not willing to play ball,” it becomes not worthwhile for the administration, the FBI, and the committee “to burn time and resources,” the Democratic aide said.

“Hopefully Republican senators” will work to reach consensus with the White House on more nominees, the aide added.

One aide to a GOP senator from a state without confirmed US attorneys said the state’s senators agreed with the White House on a slate of picks about a year ago, with the understanding they’d undergo formal vetting. That state still doesn’t have nominees and hasn’t received an explanation from the White House, the aide said.

California Vacancies

In California, Democratic Sens. Dianne Feinstein and freshman Alex Padilla set up separate screening commissions to review applications for each judicial and US attorney opening.

“They have the right to do that but it may have the effect of slowing things down a bit,” said Benjamin Wagner, a Gibson Dunn partner who was an Obama-appointed US attorney in California’s Eastern District.

A Padilla spokeswoman said, “Senators Feinstein and Padilla are working with the Biden administration to expeditiously fill these vacancies.”

Attorney General Merrick Garland, in pleading with lawmakers last month to swiftly confirm more prosecutors, called US attorneys “the tip of the spear of our effort to fight violent crime.”

Sen Tom Cotton (R-Ark.) had caused months-long delays in confirmations of Biden US attorneys by objecting to the traditional quick consideration usually afforded such nominees over his unrelated objections to the Justice Department’s handling of Black Lives Matter litigation.

Cotton relented in April after receiving assurances about additional oversight, paving the way for the confirmations of eight US attorneys.

Forty-four of Biden’s 48 US attorney nominees have been confirmed thus far. At this exact juncture under Trump, 67 were nominated, with 65 confirmed, according to figures provided by the White House.

Vacancies could give Republicans more campaign fodder to label Democrats as soft on crime in the midterms. A March Gallup poll found the share of Americans who worry a “great deal” about crime and violence rose to 53% this year, compared with 42% in 2020.

“Given that crime is up across the country, including Louisville, you would think the Administration would move on these nominations,” said Stephanie Penn, a spokeswoman for Senate Minority Leader Mitch McConnell (R-Ky.). Biden hasn’t nominated a US attorney in either of Kentucky’s two districts.

Former federal prosecutors say interim office leaders have mixed success in marshaling resources across law enforcement agencies to address crime in their community.

“When you have an acting US attorney, and the next US attorney’s nomination and confirmation could happen at any minute, some law enforcement agencies may be reluctant to invest in developing a close relationship with the acting US attorney,” said Jacquelyn Kasulis, a partner at Kirkland & Ellis who was acting US attorney in the Eastern District of New York in 2021.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com