Do Senate Republicans Want Far-Left D.C. Judges To Appoint The Country’s No. 2 Prosecutor?
Will Senate Republicans allow an apparent archnemesis of Donald Trump to take one of the president’s most pivotal appointments out of his hands and pick perhaps the nation’s most powerful prosecutor after the attorney general herself?
That possibility is growing with the Senate Judiciary Committee having refused to timely bring interim U.S. Attorney for the District of Columbia Ed Martin’s nomination for that post to a vote, amid opposition from Sen. Thom Tillis, R-N.C. With Republicans holding a 12-10 majority on the committee, Tillis’ nay vote would prevent Martin from securing the majority needed to be voted out of committee and come to the Senate floor for a full vote.
Even if the senator were to quickly flip, absent the Republican-led Senate employing extraordinary measures to fast-track Martin’s confirmation, his 120-day term as interim U.S. attorney will expire on May 20. This would create a vacancy absent preemptive and potentially costly action from Martin and/or the Trump administration (about which more later). Pursuant to 28 U.S. Code § 546(d), in the event of such a vacancy, the district court for the U.S. attorney’s district “may appoint a United States attorney to serve until the vacancy is filled.”
Therefore, the D.C. District Court would be responsible for selecting Martin’s temporary successor. That would put the appointment in the hands of Chief Judge James Boasberg, who infamously sought to force the administration to ground planes deporting Tren de Aragua terrorists, halt its deportation plans under the Alien Enemies Act, and threaten the administration with contempt. These acts are consistent with his broader record of regime-friendly and Trump-hostile jurisprudence.
It is not clear what process the court would use to select the next interim U.S. attorney. The court did not respond to my inquiry as to its procedure. A cursory search of the historical record shows that the U.S. District Court for the District of New Mexico filled a vacancy for that district’s U.S. attorney back in 2008 pursuant to an administrative order affirmed by a majority of that court’s judges.
If the D.C. District follows suit, other notoriously anti-Trump judges such as Judges Tanya Chutkan and Beryl Howell — and their colleagues in a court that has served as perhaps the heart of the judicial resistance to Trump II, legitimized the lawfare that aimed to prevent his reelection, and railroaded his colleagues and supporters — would get to vote for the D.C. U.S. attorney as well. The president could theoretically fire the court-appointed nominee under 28 U.S.C. 541, but that move could come with its own potential political costs.
The idea that the D.C. District Court would be responsible for selecting the U.S. attorney for that district for any period of time would imperil the president’s effort to restore the rule of law in Washington, D.C., and more broadly. That’s because the D.C. U.S. attorney’s office is “unique … in the size and scope of its work,” according to the Justice Department, in that it “serves as both the local and the federal prosecutor for the nation’s capital.”
Under that dual-hatted role, it is responsible for pursuing not only local street crimes in a city that has grown particularly lawless and violent, but also cases with a nexus to the U.S. government covering everything from “child pornography to gangs to financial fraud to terrorism,” and defending “the interests of the United States in civil suits brought in the district,” including on “far-reaching challenges to federal policies and employment practices.”
Martin, a conservative stalwart, has already made his mark as interim U.S. attorney. Under his leadership, violent crime has dropped by 25 percent in the District of Columbia. Under President Trump’s executive order to “Make D.C. Safe and Beautiful,” in March, Martin launched an initiative to “Make D.C. Safe Again” through cracking down on illegal guns, seeking tougher penalties for offenses, and detaining offenders for federal firearms violations. His office had brought charges against 35 defendants as of late April. As Martin supporter Mike Howell recently detailed, in March, Martin “set a record with 18 federal gun crime charges — a mark he’s on pace to surpass. He’s seized over $200,000 from Hamas-linked actors, rescued 25 children from predators, and secured a 10-year sentence for a carjacker.”
But what has really seemed to incense our ruling class about Martin has been his effort to restore justice by challenging the left’s lawfare efforts, ranging from Jan. 6 to Russiagate. Martin has sought transparency and accountability regarding the railroading of J6 defendants by the Biden administration. This includes Martin’s internal review of the Biden DOJ’s use of the Enron-driven “obstruction of an official proceeding” charge to hit protesters with a felony punishable by up to 20 years in prison. It also includes Martin’s firing of attorneys who arguably weaponized and politicized their offices in pursuing J6ers. Martin also appears to be probing the Justice Department’s role in Russiagate, among other threatened investigatory actions touching on regime third rails.
These efforts, and Martin’s past work supporting Jan. 6 defendants he believes were persecuted by the prior administration, have led to opposition not only from Senate Democrats but also from Tillis and perhaps some other wobbly Republicans. Senate Judiciary Chairman Chuck Grassley’s office did not respond to inquiries about its plans regarding the Martin nomination.
For their part, President Trump and others in the White House have in recent days been voicing public support for Martin’s confirmation. Should the Senate fail to act aggressively, it would appear the administration can maneuver to buy him time — and avoid the prospect of the D.C. District Court selecting a temporary U.S. attorney until the president’s nominee is confirmed — in at least two different ways.
According to a 2003 Office of Legal Counsel opinion, an administration may fill a vacancy for U.S. attorney under either the aforementioned Section 546 or the Vacancies Reform Act.
Under Section 546, while the D.C. District Court may appoint a U.S. attorney after the expiration of an interim U.S. attorney’s 120-day term, it holds no such power before the term lapses. Based on the wording of the statute, it would seem that, should the U.S. attorney’s seat be vacated by May 20, the attorney general could appoint a new interim U.S. attorney for up to 120 days.
Meanwhile, the Vacancies Reform Act is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency … for which appointment is required to be made by the President.”
Since Section 546 does not address “acting” U.S. attorneys, but rather full-fledged U.S. attorneys operating for a limited term, the Justice Department has found that the two sets of vacancy statutes do not conflict and that an administration can avail itself of either option. Under the Vacancies Reform Act, the president may designate as acting U.S. attorney an official already holding a Senate-confirmed position. Alternatively, absent a presidential designation, the first assistant U.S. attorney may assume the position. An acting U.S. attorney would be able to serve for up to 210 days.
According to the Justice Department, “the two statutes can operate in sequence even when, for example, an acting United States Attorney has reached a 210-day limit and lost his power to act. Nor would anything in the statutes preclude the same person from acting as United States Attorney and then receiving an appointment under section 546.”
The White House did not respond to my inquiries into the prospect of the D.C. District Court appointing a U.S. attorney or what steps it might take to avoid that fate.
Senate Republicans’ inability to confirm Ed Martin — or force the administration to engage in machinations to ultimately get him across the finish line — would signify to Democrats that their GOP counterparts could be pressured to buck the president on personnel and policy, therefore making his agenda vulnerable.
Time will tell whether the upper chamber’s Republicans remember what time it is and act accordingly.
Ben Weingarten is editor at large for RealClearInvestigations. He is a senior contributor to The Federalist, columnist at Newsweek, and a contributor to the New York Post and Epoch Times, among other publications. Subscribe to his newsletter at weingarten.substack.com, and follow him on Twitter: @bhweingarten.
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