President Donald Trump may be able to skirt Senate Minority Leader Chuck Schumer’s (D-NY) blockade on a pair of prosecutor nominees using a little-known statute that lets judges install them instead of the Senate.
Trump named Jay Clayton, the former chairman of the Securities and Exchange Commission, as the interim U.S. attorney for Manhattan on Wednesday, the same day Schumer announced he would veto Clayton and one other New York nominee using a tradition that gives home-state senators veto power over their confirmation.
The interim appointment only gives the White House a temporary reprieve from Schumer’s blockade, put in place as he and other Democrats accuse Trump of lacking a “fidelity to the law.” Interim appointments are good for as little as 120 days, meaning Clayton’s tenure could be over sometime in August.
But federal law allows interim prosecutors to continue in their role indefinitely with a simple vote by judges in the attorney’s district. The votes are designed to limit disruption while nominees make their way through the Senate, but in practice, they have become a workaround for presidents to avoid the confirmation process altogether.
The Department of Justice used this very playbook in Trump’s first term, naming Geoffrey Berman as the interim U.S. attorney for the Southern District of New York, the same post that Clayton will soon hold. After four months, a district panel then voted to appoint Berman, who faced opposition from Schumer and Sen. Kirsten Gillibrand (D-NY), his home-state colleague.
Berman served in the role for more than two years before he was fired by Attorney General Bill Barr, allegedly over his investigations into several Trump allies. He never received a Senate confirmation vote.
District judges don’t have to vote on an interim attorney before his or her term expires. They’re not even required to accept the administration’s desired prosecutor. The relevant statute only says that the court “may appoint a United States attorney to serve until the vacancy is filled.”
That means judges in the Southern District of New York, appointed predominantly by Democratic presidents, could in theory name someone other than Clayton if they find his nomination objectionable or appoint no one at all.
Courts do have a vested interest in preventing casework delays, however, and it would be unusual to appoint a prosecutor the White House did not nominate or might otherwise oppose.
Oftentimes, the DOJ consults with the chief district judge ahead of time to gauge support for a permanent appointment, not unlike the advise-and-consent role in the Senate, although it’s not clear if this holds true for Clayton’s nomination.
“You don’t want to go through this process and then be unhappy with the results, so that same sort of negotiation traditionally has gone on in the background,” Jennifer Selin, a law professor at Arizona State University, told the Washington Examiner.
If a permanent appointment seems unlikely, the administration does have another way to short-circuit the confirmation process. The president can name a U.S. attorney, subject to certain conditions, for up to 300 days, or almost a full year, using the Federal Vacancies Reform Act.
This tenure is considered separate from the ordinary 120-day term afforded to interim U.S. attorneys, according to Selin, so it’s conceivable that Trump could extend Clayton’s tenure well past his first year in office using different appointment authorities.
It’s not entirely clear which authority Trump is using to appoint Clayton as U.S. attorney, but the president notoriously pushed the limits of the Vacancies Act during his first term. The White House and DOJ did not respond to a request for comment.
Clayton’s appointment comes at a tumultuous moment for the Southern District of New York, considered one of the most prestigious U.S. attorney offices in the country. Several senior prosecutors resigned earlier this year after the DOJ moved to dismiss corruption charges against New York City Mayor Eric Adams, a Trump ally.
Two prosecutors who worked that case were put on leave as well.
Trump has not yet pursued an interim appointment for Joseph Nocella Jr., the other nominee Schumer is blocking using a Senate privilege known as the “blue slip” process. For now, John Durham, the ex-special counsel who probed the Trump-Russia investigation, is serving in his place as U.S. attorney for the Eastern District of New York.
But Trump was previously successful in installing his preferred nominee in that district without Senate confirmation. In 2018, district judges appointed Richard Donoghue to the post after the DOJ named him as interim prosecutor.
In fact, dozens of U.S. attorneys have been appointed by district courts over the last three decades, according to researchers at Yale and Boston University.
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In some cases, there is a political advantage to sidestepping the Senate, allowing presidents to overcome “blue slip” objections or a chamber controlled by the opposite party. The district judge appointments are also a matter of practicality given the uncertainty created by the prospect of vacancies.
Selin noted that court appointments are more common after presidential elections, when presidents typically ask for the resignation of all 93 U.S. attorneys.