To say that the Trump administration is a danger to the rule of law is an understatement. According to a new report published by Slate, Attorney General Jeff Sessions is “abusing a little-used statute in an unprecedented way to circumvent congressional confirmation hearings with respect to U.S. attorneys.
Given what we know about the ongoing investigations into the president and Trump’s authoritarian instincts, this is a frightening and dangerous development.
U.S. Attorneys hold immense power. From enforcing America’s drug laws to investigating money laundering, they possess a considerable amount of discretion in how to allocate the Department of Justice’s scarce law enforcement resources. U.S. Attorneys have the ability to make prosecutions of various federal statutes more or less likely and sentencing for any violations more or less draconian.
Because of that power, it makes sense that the U.S. Senate has the role of confirming or rejecting presidential appointments to the position. Without that check, the U.S. attorney offices could just become another arm of the executive branch.
In 2007 —in response to a Bush administration scandal surrounding U.S. attorneys when Attorney General Alberto Gonzales attempted to purge attorneys seen as not sufficiently loyal to the president— Congress voted to amend the statute governing U.S. attorney appointments to clarify that there were limits on the appointment of interim U.S. attorneys.
But under that amended statute (28 U.S.C. Section 546), the attorney general still has nearly unlimited discretion in selecting interim U.S. attorneys to serve for up to 120 days. And this is where Trump and Sessions are gaming the rule of law.
As reported by Slate’s Jeff Hauser:
“On March 10, 2017, Sessions summarily fired 46 U.S. attorneys, including most dramatically U.S. Attorney for the Southern District of New York Preet Bharara. Under the Vacancies Act, the career figures who took over those offices could serve for 300 days on that acting basis. Flash forward the start of this year, when on Jan. 3, the Justice Department announced the appointment of 17 interim U.S. attorneys to replace acting officials whose time had run out.”
Due to the potential legal exposure of Donald Trump, the Trump Organization, Jared Kushner, and the Kushner family business in the Southern District of New York, the Eastern District of New York, and New Jersey, those interim appointments are the most obviously troubling.
For example, the close ties of Trump and Jared Kushner to Deutsche Bank have been the subject of much scrutiny. Sessions’ handpicked interim U.S. attorney for SDNY, Geoffrey Berman, meanwhile, has his own ties to the financial institution that has remained controversial due to its relationships with many figures close to Vladimir Putin.
A decade ago, Berman was brought in to do legal work for Deutsche Bank when Robert Khuzami was its general counsel in the U.S., according to three people familiar with the matter. Now that Berman has been tapped for the Southern District of New York, Khuzami has become his deputy.
Additionally, Trump “personally interviewed Mr. Berman for the job,” according to reporting from the Wall Street Journal. A president interviewing a potential U.S. attorney “is rare,” per the Journal, “and the move—reported last fall—was seen by some as particularly troublesome, given the office’s authority over Mr. Trump’s home city and the seat of his business empire.”
The ability of new handpicked acting U.S. attorneys to access all evidence related to various ongoing investigations is a big deal.
Beyond favorable treatment, what could a Trump-allied U.S. attorney do for the Trump or Kushner families? One possibility is that within his or her 120 days running the office, an interim U.S. attorney could review case files relevant to the legal exposure of the president, the Trump Organization, or Kushner Companies. A sufficiently corrupt prosecutor could share those findings with political appointees in the Justice Department or the White House.
Friendly U.S. attorneys could potentially divert resources to relieve pressure on Trump and his family. What if a U.S. attorney moved to settle a series of controversial cases and then diverted resources from areas of Trump family legal concern (e.g., money laundering, tax collection, securities fraud)?
Regardless of how justifiable such a decision may or may not be in a vacuum, it would be scandalous if done in order to attempt to relieve pressure on Trump or his allies.
You can read the entire report here.