President Trump’s efforts to keep his loyalist U.S. attorneys in their roles hit a dead end this week, as two top federal prosecutors stepped down over piling complications from their leadership.
Julianne Murray, Delaware’s GOP chair-turned-top federal prosecutor, announced her resignation Friday, just days after Alina Habba said she was leaving her position atop New Jersey’s federal prosecuting office.
They both pinned the blame on a long-standing Senate practice that cut their confirmation ambitions short, and Habba assigned additional fault to the judges whose dockets were upended as the legality of her tenure was questioned.
It appeared to mark a rare reality check for the administration, which has taken extensive steps to keep its embattled U.S. attorneys in their posts, even as courts have ruled they are serving unlawfully.
“There’s a lot of hills that they’re willing to die on, and clearly this isn’t one of them,” said Jessica Levinson, a law professor at Loyola Marymount University.
The resignations follow a ruling by a panel of federal appeals court judges affirming Habba’s disqualification, at the heart of it a rejection of the maneuvers the administration took to keep her and other U.S. attorneys in the positions after their interim terms expired.
When Habba’s temporary tenure ended in July, New Jersey federal judges declined to extend the clock, instead invoking a seldom-used power to appoint her next-in-command to the position.
However, so Habba could remain atop the office, Attorney General Pam Bondi fired the judges’ selected successor and Trump withdrew Habba’s formal nomination. She was given the title of acting U.S. attorney, alongside all the powers that come with it.
The administration made similar moves in Nevada, California, New York, New Mexico and Delaware, where the prosecutors were turned from interim to acting U.S. attorneys when judges did not greenlight their continued leadership without Senate approval.
Sigal Chattah and Bill Essayli, the acting top federal prosecutors for Nevada and the district covering Los Angeles, respectively, were disqualified by judges and have appealed. Challenges to the installations of John Sarcone III and Ryan Ellison, who hold the roles in the Northern District of New York and New Mexico, respectively, are pending.
Murray’s appointment had not drawn a legal challenge, but the clock on her interim status ran out last month. A judge declined to extend it, and she suggested the panel’s reasoning in ruling against Habba applied to her authority, as well.
But her tenure was doomed, she claimed, attributing her untimely departure to the Senate’s long-standing blue slip tradition.
The bipartisan practice lets home-state senators veto presidential nominees to district courts and U.S. attorney offices. Murray accused Delaware Sens. Chris Coons and Lisa Blunt Rochester, both Democrats, of refusing to return the slips on her behalf for political reasons.
“This is not about advice and consent,” she said. “Because of this incredibly flawed tradition, I wasn’t even considered by the Judiciary Committee, let alone the entire Senate.”
As the tradition holds up Trump’s nominees, the president himself has grown increasingly incensed. Trump has diagnosed his U.S. attorneys’ legal troubles as a symptom of the stalled confirmations, which have bumped their tenures outside the interim windows in which many initially served lawfully before their leadership came under legal scrutiny.
Habba faced firm opposition from New Jersey Sens. Cory Booker and Andy Kim, both Democrats, as well.
“Too many GREAT REPUBLICANS are being, SENT PACKIN’,” Trump wrote Thursday on Truth Social. “None are getting approved!!!”
It’s teed up a conflict between the president and top Senate Republicans, who have defended the practice because it affords them the same input when a Democrat holds the Oval Office.
Trump called on Senate Majority Leader John Thune (R-S.D.) to “get something done, ideally the termination of Blue Slips,” after failing to convince Sen. Chuck Grassley (R-Iowa), chair of the Senate Judiciary Committee, to change course.
But without the senators’ buy-in, there’s little Trump can do. The president previously vowed to sue over the practice, but such a lawsuit would face long odds and never came to fruition.
“It’s not like changing a law; it’s a custom, or policy,” Levinson said. “To the extent that they don’t like it, his option is to try and cajole.”
In the Eastern District of Virginia, Trump’s handpicked prosecutor to pursue charges against two of his political opponents faces similar odds.
Lindsey Halligan was installed after her judge-approved predecessor, Erik Siebert, resigned amid pressure to indict two Trump foes, former FBI Director James Comey and New York Attorney General Letitia James (D).
A federal judge disqualified her — and dismissed the cases — last month, ruling she never lawfully held the office in the first place.
The Trump administration this week submitted Halligan’s formal nomination to the Senate Judiciary Committee with little fanfare, paperwork obtained by The Hill shows. The upper chamber’s approval would make permanent her role as the district’s top prosecutor.
However, both of Virginia’s senators are Democrats, and they signaled skepticism about her outlook on Thursday.
Sens. Mark Warner and Tim Kaine told reporters they have a process for making U.S. attorney recommendations to the White House, one that resulted in Siebert’s successful nomination — until he was pushed out.
“We’ll go through the process again, but we’re going to review, and we’ll send qualified nominees,” Warner said.
Kaine said Halligan has never reached out to the senators to request a meeting. She took over the office in late September.
“The whole thing is an attempt to just end-run the Senate and end-run the judiciary,” he said.
The importance of securing Halligan’s confirmation has been amplified by increasingly skeptical judges in her district, who have raised concerns about her lingering presence in the weeks after her tenure was found to be unlawful.
Though the Justice Department initially vowed to appeal Halligan’s disqualification, it has not. Yet, she remains at the helm of the prosecuting office, and her name continues to appear on court filings.
Judges have pushed back from the bench about why her disqualification would not preclude her participation in cases.
One of those judges — U.S. District Judge Michael Nachmanoff, who oversaw Comey’s case at the trial level — ordered Halligan’s name struck from a man’s case records, court filings show. Another judge suggested at a hearing that Halligan, like Habba, should resign.
Bondi and Deputy Attorney General Todd Blanche hit back in a joint statement Monday that accused certain judges in Halligan’s district of pursuing an “unconscionable campaign of bias and hostility” against her and her line prosecutors.
In her resignation note, Habba blamed New Jersey’s district judges, too, claiming they “took advantage of a flawed blue slip tradition and became weapons for the politicized left” and stopped conducting trials and entering sentences. Bondi said it became “untenable” for Habba to effectively run the office.
In New Jersey, disruptions to the federal court system were reported soon after Habba was disqualified in August, from adjourned trials and hearings to the ripple effects of those cancellations, like delayed bail or detention rulings.
Barbara McQuade, a former U.S. attorney, rejected the notion that the judges were engaging in partisanship, saying what she sees is the courts preventing an abuse of power by asserting a check on what they see as an illegal appointment.
Complications could arise from the leaders indefinitely holding their posts without Senate confirmation, she said, submitting that the acting U.S. attorneys likely cannot hire or promote people, resolve disputes, lead a cohesive law enforcement strategy or represent the office “confidently” before the court without the political force that comes with that approval.
“If the U.S. attorney has no credibility and no respect on the bench, the office is ill-served,” McQuade said.
Bondi vowed that the Justice Department would seek review of the decision affirming Habba’s disqualification, and prosecutors were granted additional time Thursday to ask the full appeals court to reconsider the panel’s ruling.
The administration’s next — and final — stop would be the Supreme Court, but whether the U.S. attorneys’ fight reaches the justices is yet to be seen.
McQuade suggested Habba’s resignation might moot any appeal, while Levinson said the issue could eventually land at the high court when the administration has a more convincing case to present.
“They want to bring their strong cases, where they think there’s a real chance of success,” Levinson said.
