The rule of thumb in Trump world is careful how much you cringe over one of his selections for a given post — because as bad as the current nominee may be, it’s a certainty that the next one will be worse. A corollary to this is that an awful candidate can get approved with relative ease if that person is replacing one that is truly grotesque. We have seen this happen with regularity and because of that the bar of standards has lowered significantly. Pam Bondi is only deemed an acceptable choice for attorney general because Matt Gaetz was over the moon level bad. Now we see the bomb throwing Jeanine Pirro going back to becoming a prosecutor, after a hiatus of 20 years. That, in any normal world, would be considered absurd but Thom Tillis signed off on it yesterday when it was announced. Why? Because Ed Martin was so unspeakably awful.
So today people are saying things like, “At least Pirro was a prosecutor,” as if those are glad tidings, when the job at hand is as top prosecutor for the District of Columbia. The tragic truth is that yes, as much as Pirro sucks as a candidate for this job, at least she’s not Ed Martin, a little known lawyer from Missouri who is not, in fact, a prosecutor, nor was he one two decades ago. But still, the bar should not be, “How does Pirro compare to the disastrous Martin?” but how does she fit the job description, period? And will the Senate buy it?
Now it all is going to get much stranger still, so follow along closely: the New York Times is putting forth a theory on how Trump avoids the issue of Senate confirmation altogether and continues to appoint whomever he wants wherever he wants. This is an iffy legal theory and those are precisely the ones that Trump loves to play with, since this is all a game to him anyhow.
By replacing one interim U.S. attorney with another, the Trump administration appears to be trying a legal tactic that could essentially eliminate any need to submit U.S. attorney picks to the Senate for confirmation.
But the move runs the risk that criminal defendants indicted in Washington after May 20, when Mr. Martin’s 120-day appointment expires, could challenge their prosecution on the grounds that Ms. Pirro had not been lawfully appointed. In a similar situation, a court struck down certain actions that the Department of Homeland Security took in Mr. Trump’s first term, ruling that he had unlawfully appointed Kenneth T. Cuccinelli II to lead U.S. Citizenship and Immigration Services.
The issue turns on the federal law that gives the president the power to appoint anyone as an interim U.S. attorney for 120 days when that position is vacant. It also says that if the appointment expires, a federal court can appoint its own choice as interim top prosecutor until there is a Senate-confirmed official.
The traditional understanding of that law is that it gives the president a one-time 120-day window, after which the courts can appoint someone. To be sure, Mr. Trump would not be limited to the court’s choice: He could immediately fire anyone he did not like.
But after 120 days, he would be limited to naming an acting U.S. attorney under a different law, the Vacancies Reform Act. That would narrow his choices to someone the Senate had already confirmed to another position in his administration, or who had been a senior Justice Department official for at least 90 days before the position became vacant — effectively meaning someone who served in the Biden administration.
The administration has not publicly explained how it believes Mr. Trump has the lawful authority to appoint Ms. Pirro. But the most obvious theory, legal experts said, is that because Mr. Martin would leave just before reaching 120 days, his term technically never would have expired and so Mr. Trump could start over.
Should courts uphold Ms. Pirro’s appointment, Mr. Trump would just need to change U.S. attorneys every 119 days to choose whomever he likes without Senate vetting, perhaps even by swapping the same people among different districts.
This is musical chairs time. By this theory, Alina Habba, now the interim U.S. attorney in New Jersey, could become an interim U.S. attorney in D.C. and Pirro could take her place in New Jersey. This is the Bizarro World extension of this theory, yes, but that is precisely why it would appeal to Trump. He gets his cake and eats it, too. He has his top loyalists where he wants them, reporting back to him and doing what he tells them to do — legal or not — and then he just switches them out until the music stops again in 119 days.
And as batshit as all this is, at least Pirro isn’t being contemplated for attorney general or the Supreme Court. Yet. The Times reports that Pirro was on Trump’s shortlist for both of those posts, incredible as that seems.
I can’t wait until the legal scholars begin to dish this dirt. I hear Alan Dershowitz cackling in the background already.
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Cue the scene from the initial Star Wars movie in the trash bin. When the heroes realize they are trapped the observation it could be worse was made. Then that monster down in the water and garbage makes its sound. Followed by Harrison Ford/Han Solo with a pure deadpan look on his face saying “It’s worse.” That’s the Trump administration in a nutshell.