US Attorney Ouster Forces Senate Democrats into No-Win Situation

President Donald Trump’s politically motivated replacement of a Virginia US attorney with an inexperienced loyalist underscores the lose-lose situation facing Senate Democrats wishing to hold sway over the selection of chief federal prosecutors in their states.

The ouster of the president’s choice for Eastern Virginia’s top prosecutor—which Trump justified by citing the nominee’s support from the state’s “two absolutely terrible, sleazebag Democrat Senators"—exacerbated an already bleak situation for Democrats, nominations experts said. They’re balancing a desire to maintain longstanding influence by recommending US attorney finalists to the White House against fears of Trump imposing his preferred prosecutors who lack standard credentials.

“Senate Democrats are in a near impossible position,” said Gregg Nunziata, a former chief nominations counsel to Senate Judiciary Committee Republicans. “If they cooperate with the White House, the White House has indicated it will call the nominees that emerge unacceptably tainted by Democratic support. If they don’t cooperate, the White House will try to jam through the most outrageous candidates.”

The predicament will play out with potentially significant consequences through the remainder of Trump’s term, as the majority of his remaining US attorney vacancies are in states with at least one Democratic senator. Rather than engage with home-state opposing party lawmakers, Trump and Attorney General Pam Bondi have shown a preference for appointing interim prosecutors—including heavily criticized selections in California, Nevada, and New Jersey.

Consistent with practices in many states, Sens. Tim Kaine and Mark Warner in Virginia set up a bipartisan committee to screen applicants for US attorney, before passing along their recommendation of Erik Siebert—a veteran conservative prosecutor—to the White House. As long as the Senate adheres to its blue slip rule, which gives senators power to block trial judge and US attorney nominations in their state, Democrats are unlikely to cede involvement in the pre-nomination review of US attorneys, said attorneys experienced in this process.

But the experience with Siebert demonstrates that they can’t expect Trump to give them any deference as the White House repeatedly bypasses congressional approval to install temporary US attorneys in other districts.

“It’s not just because of EDVA. I don’t think anyone has a chance of getting a half-decent US attorney anywhere where there could be a case that matters to Trump,” said Helaine Greenfeld, who’s overseen nominations for the Justice Department and Senate Judiciary Democrats. “They don’t care, there are no rules.”

Siebert, who was already leading the office while awaiting Senate confirmation, was forced to resign as he was pressured to bring criminal charges against New York Attorney General Letitia James and former FBI Director James Comey. His Trump-nominated counterpart in the Western District of Virginia, Todd Gilbert, was also endorsed by Kaine and Warner, before resigning a month into his term as interim US attorney.

Interim, Acting

Trump’s Truth Social posts over the weekend pushing Bondi to act with more urgency in targeting his enemies has implications throughout the network of 93 US attorneys. They each serve as their district’s chief federal law enforcement official and make final approvals on whether to prosecute or dismiss politically sensitive cases.

“Local interests are so strong in who runs US attorney offices” that prior “presidents would be very reluctant to pick political hacks or personal loyalists for a role like that,” said Nunziata, now executive director of the Society for the Rule of Law, a conservative legal group critical of Trump. “What you see the Trump administration trying to do is push its most outrageous and unfit” appointments “on blue states so that they can dismiss the inevitable opposition as mere partisanship or obstruction.”

The most controversial picks have all been inserted as interim US attorneys for an initial 120 days, before being converted to acting after the judiciary declined to approve them as permanent. This maneuver has prompted defense attorney motions to disqualify the acting US attorneys in New Jersey, Los Angeles, Nevada, and New Mexico.

As the merits of those arguments wend through the courts, many Democratic senators have yet to open up applications for US attorney. Some blue state districts already have interim US attorneys with more traditional prosecuting pedigrees who then received court approval to stay on indefinitely. This makes the senators less likely to disrupt the status quo by soliciting candidates for a nomination.

While some dealmaking with blue state Democrats is always a possibility, Trump’s social media posts leave little room for optimism.

Virginia’s senators were “playing ball” on Siebert, but “the fact that that apparently means these picks are bad to Trump I think bodes ill to future blue state picks,” said Mike Fragoso, a former chief nominations counsel to Senate Judiciary Committee Chair Chuck Grassley (R-Iowa). “What you’ll probably wind up seeing is Senate-confirmed US attorneys in red states or in blue states where the president doesn’t really care, and” then acting appointees—with subsequent litigation—in the remaining blue states.