President Donald Trump has repeatedly emphasized the return of the rule of law during his presidency, but the department dedicated to enforcing the law has remained without key leaders since he took office.
Under the George W. Bush administration, executive branch nominees below the attorney general would be “dismayed” at having to wait two or three months between being named by the president and starting their new job, recalled a former U.S. attorney. Now, that “seems lightning fast.”
Among Justice Department positions still requiring Senate confirmations, assistant attorneys general and U.S. attorneys represent some of the most glaring absences. Taken together, less than half those slots have Senate-confirmed leaders.
Among both groups – who help provide leadership and set law enforcement priorities in national security, fraud, civil rights, cybercrime and many other areas -- less than half of the positions have leaders confirmed in the Senate process
But is the president or the Senate to blame? It depends who you ask.
Some former DOJ officials point to a broken system in a Senate hijacked by partisan battles, while others say President Donald Trump should be pushing harder for certain nominees, such as the two named to be assistant attorneys general for the National Security Division and Criminal Division. The fact that those nominees have not been confirmed demonstrates either a lack of understanding on their importance on Trump’s part, or damage done by his administration’s attacks on DOJ, said Megan Stifel, a former attorney in DOJ’s National Security Division who helped draft the FISA Amendments Act.
“What other explanation is there? This isn’t three months into his presidency, this is a full year later,” said Stifel, who characterized the absence of an NSD leader as “almost mind-blowing.”
“These are positions vital to our national security, they are not supposed to be political,” she continued. “The lack of a (Senate-confirmed nominee) raises more questions as the days go on.”
Trump has nominated people for nine of the 11 assistant attorney general positions, but the Senate has confirmed just four, leaving seven slots filled by temporary leaders.
Those are acting assistant attorneys general, but former officials say it isn’t the same. One practical issue is that among DOJ officials, only three people have the authority to sign applications under the Foreign Intelligence Surveillance Act: the Attorney General, the Deputy Attorney General and the Assistant Attorney General for National Security. In recent comments to the Palm Beach Forum Club, Deputy Attorney General Rod Rosenstein said the absence of a Senate-confirmed national security division leader meant he and Attorney General Jeff Sessions had been trading off on signing the applications, which eats up about half-an-hour every day.
“It’s a daily exercise that has to get done,” said Stifel, who declined to characterize how many warrants are signed on an average day, citing security concerns.
(Any such applications related to Special Counsel Robert Mueller’s investigation of Russia’s meddling in the 2016 election and whether the Trump campaign was involved would presumably fall to Rosenstein alone, since Sessions is recused from that matter.)
Former Criminal Division Assistant Attorney General Alice S. Fisher said the main difference between confirmed and acting leaders is the ability to set a strategy on crime and then oversee its implementation.
“You’re in a better position to argue for additional resources, because you can argue for long-term goals,” said Fisher, who was appointed by former President George W. Bush. “And when you’ve got all these day-to-day issues like gangs, the opioid epidemic, national security, and overlaps with homeland security and the intelligence community, continuity supports the division and the work they do.”
Former President Barack Obama had nominated people for all assistant attorney general positions and had all but one confirmed by this point in his first term. Nominees to run the National Security and Criminal Divisions were announced in January 2009, and their confirmations occurred in February and April of that year, respectively. Trump named his nominee to the Criminal Division in June and National Security Division in September; both have been approved by committee in the Senate and now sit on a long list of nominees awaiting floor votes.
“It did take the president a while to get his nominees in,” said Jamil Jaffer, who previously served as counsel to both the Assistant Attorney General for National Security and the Senate Foreign Relations Committee. “But the issue now is the Senate process is broken, and Democrats are stalling nominees that matter a lot to our national security.”
The process requires 51 votes to stop debate on a nominee, which, with the Republicans in control, isn’t that hard to achieve. But even after that hurdle is cleared, Democrats can delay a final vote to approve the nominee or not for up to 30 hours -- which means the Senate can only clear a few nominees per week. (Republicans used similar tactics on President Barack Obama’s nominees.)
Brett Tolman, former U.S. Attorney for Utah, said while it’s possible that process is causing additional issues for confirmations of U.S. attorneys, in this case he believes “the responsibility falls squarely on the White House.” There are 46 Senate-confirmed U.S. attorneys in place after President Donald Trump demanded nearly all 93 of them resign at the beginning of his term; he has nominated another 12, who are awaiting confirmation, but that leaves 35 positions still empty.
Trump has nominated more U.S. attorneys than Obama had within a similar time period, but Obama replaced existing U.S. attorneys on a rolling basis rather than asking all to resign at once.
“Every single state has attorneys that have been on a short list for both Republican and Democrat administrations,” said Tolman, who was appointed under Bush. “These are qualified people that can be vetted fairly quickly. There’s no excuse for the president’s lack of nominees.”
Acting or interim U.S. attorneys do not have the same confidence as someone nominated and confirmed, Tolman said, which means they’re more likely to act as lackeys following orders from on high at DOJ. While that may sound great to supporters of DOJ’s priorities, Tolman said it’s generally better to have a leader who can push back on the DOJ and decide what’s best in a particular district.
For example, during Tolman’s tenure the FBI was pushing counterterrorism as its main priority. While Tolman said he recognized the importance of that issue, he noticed his district was struggling to adequately prosecute violent crime and other matters with current funds, so he told the FBI director at the time that he would be shifting priorities.
That allowed his staff to pursue issues specific to Utah, such as black markets selling artifacts stolen from Native American burial grounds and the highly-publicized case of the kidnapping of Elizabeth Smart, which had languished in the state system for three years. When Tolman announced his resignation, he was praised by a local police chief as someone who “always made the right choices, not necessarily the popular ones.” But Tolman said it would be almost impossible for an acting U.S. attorney to engage in that initial pushback.
“You’re reluctant to go out on a limb without autonomous control,” Tolman said. “As an interim or acting attorney, I don’t know how you can do that.”