Trump's US attorney pick could put him on collision course with Senate
President Donald Trump’s campaign to eliminate an arcane but long-standing Senate tradition may gain steam as he presses to install one of his White House advisers as U.S. attorney following the ouster of her predecessor.
On Monday, the president named Lindsay Halligan, a former insurance lawyer with no prosecutorial experience, as interim U.S. attorney for the Eastern District of Virginia. Halligan replaces Erik S. Siebert, who resigned Friday as interim U.S. attorney after refusing to prosecute two of Trump’s most prominent political enemies.
Siebert had been nominated to the Senate to fill the role permanently—and Trump suggested over the weekend on social media he planned to also officially nominate Halligan. She can serve only 120 days as interim U.S. attorney.
But it’s unclear whether Halligan—whose most recent White House assignment was removing “improper ideology” from the Smithsonian museums—will receive the crucial backing of Virginia’s two Democratic senators.
Sens. Mark R. Warner and Tim Kaine supported Siebert through what’s known as the Senate’s “blue slip” process in which senators can effectively veto U.S. attorney and district court judge nominees in their home state.
In interviews Monday, Kaine and Warner said they would review Halligan’s nomination if it comes to Capitol Hill. But neither Virginia senator has previously supported nominees for the job without prosecutorial or Justice Department experience, Kaine said. And Halligan’s lack of experience is especially concerning in a district that handles many of the country’s sensitive national security cases, Kaine explained.
“You wouldn’t want a political hatchet person to be U.S. attorney in any district in the United States, but especially not in the Eastern District of Virginia,” Kaine said in an interview. “And sadly it appears that’s exactly what Donald Trump wants.”
Warner said Trump’s ouster of Siebert should be raising alarms.
“It appears here that a U.S. attorney was fired because he wouldn’t file unsubstantiated charges against an enemy of the president,” Warner said. “If that isn’t a ‘holy crap’ moment, I don’t know what is.”
U.S. attorneys have become a flash point this year between Trump and the Senate as the president seeks to wield more power over Congress and the courts. The Senate has confirmed only two of the 42 U.S. attorneys Trump has nominated since he took office in January. That pace is significantly slower than during Trump’s first term, when 15 were approved out of 42 nominated during his first eight months in office.
Before Siebert’s exit, Trump had raged against the blue slip for months because it has gotten in the way of rapid approval of his U.S. attorney nominees. He has pressed Sen. Chuck Grassley (R-Iowa), the chairman of the Senate Judiciary Committee, repeatedly to get rid of it.
But Grassley has said the blue slip will remain, one of the last vestiges of bipartisanship in an increasingly partisan Senate.
“We must protect the constitutional authorities of the legislative branch to preserve the separation of powers and strengthen our system of checks and balances,” Grassley said in a statement last month after Trump criticized him. “The blue slip is one tool the Senate must keep in its tool box to help keep the people’s branch accountable to the people.”
Democrats have rare leverage when it comes to judicial nominees because 41 of the 93 U.S. attorneys are in states with at least one Democratic senator. Only a handful of Senate Democrats have signed off on Trump’s U.S. attorney nominees in their states so far—and some say it’s hard to envision Trump nominating anyone whom they could accept.
Trump is “trying to weaponize the entire Department of Justice to destroy his political opposition—and the U.S. attorneys are very clearly an important part of his plan,” Sen. Chris Murphy (D-Connecticut) said. “I will not vote for any U.S. attorneys so long as the threat to democracy is as high as it is today.”
Trump has claimed that Democratic “SLEAZEBAGS” such as Senate Minority Leader Charles E. Schumer (New York)—who refused in April to sign off on two of Trump’s U.S. attorney nominees—have held up his picks.
Trump said Friday that he withdrew his support for Siebert when he learned that Kaine and Warner were supporting him.
“When I saw that he got approved by those two men, I said pull it, because he can’t be any good,” Trump told reporters Friday.
The Judiciary Committee does not hold hearings on district court nominees or vote on sending U.S. attorney nominees to the full Senate until both senators in the state “return” blue slips, meaning they sign off on the nominee.
Senators typically work with the White House to agree on nominees before the president names them to ensure they can be confirmed. Warner and Kaine sent recommendations to the White House in April for Virginia’s two U.S. attorney vacancies, they said. Trump nominated two of the candidates they suggested.
“Chairman Grassley’s been under a lot of pressure already and he’s been strong,” Warner said. “I hope he stays strong.”
Trump has infuriated Democratic senators in Nevada, New Mexico, New Jersey, California and New York by going around them to install loyalists as interim U.S. attorneys, allowing them to serve for 120 days without Senate confirmation.
Once their terms ran out, the Justice Department then designated them “acting” U.S. attorneys in an attempt to let them serve 210 more days—triggering lawsuits and infuriating Democratic senators who argue the moves are illegal. A federal judge agreed, ruling last month that Alina Habba, whom Trump named as acting U.S. attorney in New Jersey, was serving “without legal authority.” (The Justice Department is appealing.)
The Senate confirmed Trump’s U.S. attorney nominees by unanimous consent during his first term, but Democrats have been much more reluctant to support them in his second.
Just one Democrat—Sen. Dick Durbin (Illinois)—voted for Jason Quiñones, Trump’s pick for U.S. attorney in the Southern District of Florida. No Democrats voted for Jeanine Pirro, Trump’s nominee for U.S. attorney in the District of Columbia.
Democrats’ growing reluctance to vote for Trump’s U.S. attorney nominees reflects a larger breakdown in the Senate confirmation process, which led Republicans to change the chamber’s rules this month over Democrats’ objections to help clear a backlog of nominees.
Just two of the eight judges the Senate has confirmed since Trump returned to the White House have won bipartisan support, while most of them did during Trump’s first term.
More than 80% of the 234 judges the Senate confirmed during Trump’s first term received bipartisan support, including two of three Supreme Court justices. At least one Senate Republican, in turn, supported more than 80% of President Joe Biden’s 235 judicial nominees.
“Looking at the cast of nominees so far, the level of unfitness is breathtaking—beyond anything he did in his first term in terms of ideological extremism, ethical breaches and apparent lack of respect for the law,” said Sen. Richard Blumenthal (D-Connecticut), a Judiciary Committee member who voted to confirm dozens of Trump’s judicial nominees in his first term.
Republicans reject the argument that Trump’s judicial nominees in his second term are any less qualified than those in his first.
“Every single one of President Trump’s nominees are highly qualified—the real difference between this term and last is the historic Democrat obstruction to the President and his agenda that the American people elected him to enact,” Abigail Jackson, a White House spokeswoman, said in a statement.
Still, some Republicans say Trump is selecting judges in a slightly different mold.
Mike Davis, a former Republican chief counsel for nominations on the Senate Judiciary Committee who now runs a conservative judicial advocacy group, said he thought Trump was nominating bolder and more fearless judges this term than he did during his first term, citing Emil Bove and Whitney Hermandorfer, whom the Senate confirmed in July to circuit court judgeships.
“These are people that have walked the walk, not just talked the talk,” said Robert Luther III, who comanaged the judicial selection process in the White House counsel’s office in Trump’s first term.
Democrats were especially incensed by Bove, a former personal lawyer for Trump whom the Senate confirmed despite the concerns of hundreds of former prosecutors, who described him in a letter as “the worst conceivable nominee.” As a circuit court nominee, Bove was not subject to the blue slip process.
Some Republicans were troubled by Bove, too. Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) voted against him, and Gregg Nunziata, a former Republican chief counsel for nominations on the Senate Judiciary Committee, urged the Senate not to confirm him.
“There’s every reason to believe the president wants to nominate judges who would be more loyal to him and less inclined to constrain his behavior,” Nunziata said. “I think Bove was a warning sign.”
At times, however, the White House has worked with Democrats—including Kaine and Warner—behind the scenes to find U.S. attorney nominees they could support, according to Democratic senators.
Democratic Sens. Tina Smith (Minnesota), Amy Klobuchar (Minnesota), Gary Peters (Michigan), Elissa Slotkin (Michigan) and John Fetterman (Pennsylvania) have returned blue slips for U.S. attorney nominees. Klobuchar and Smith worked with Rep. Tom Emmer (R-Minnesota) to find a nominee, Daniel Rosen, whom they could support, Klobuchar said.
“It was someone that both Senator Smith and I know and is a well-respected person,” Klobuchar said. “And not only that, we had some meeting of the minds on who the acting [U.S. attorney] was with the Justice Department—and that is the U.S. attorney who has been holding down the fort during the killing of Melissa Hortman,” the state representative assassinated last month.
“Maybe we’re an aberration,” Klobuchar added.
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