The Real Problem with the Pirro Nomination
Spoiler: it is about the abuse of presidential power.
As I am sure most have seen, President Trump has named Jeanine Pirro to be the acting US Attorney for the District of Columbia. See, for example, the BBC: Trump names Fox News host as top Washington DC prosecutor.
The announcement comes after Trump withdrew his first pick for the job after he lost key Republican support in the Senate, which votes on such positions.
After Trump’s 2020 loss to Joe Biden, Pirro made false statements about the election that were part of a lawsuit against Fox News by a company that makes voting machines. The case was settled for more than $787m (£594m).
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In the Truth Social post on Thursday night, Trump noted that she previously served as a Republican district attorney in Westchester, New York, as well as a judge. He also touted her roles on various shows on Fox News, which he called “one of the Highest Rated Shows on Television”.
Pirro has been a close ally of Trump for decades. In one of his last actions during his first term, Trump issued a pardon to her husband, who had been convicted of tax evasion decades earlier.
It seems worth noting that the first pick, Ed Martin, was so toxic that there weren’t enough GOP Senators willing to support him as the permanent US Attorney. Martin served as the interim for just shy of the 120 legal max (more on that in a minute). For anyone not aware of what made Martin a problem, see NPR: Trump nominee gives misleading testimony about ties to alleged ‘Nazi sympathizer‘. See also, via the AP: Key Republican says he won’t back Trump’s pick for top DC prosecutor because of Jan. 6 ties.
Now, I will state that within my own general parameters for what consists of minimal qualifications for appointment by the executive, Pirro is qualified insofar as she was a district attorney and a county judge. I would not say that her resume is overwhelmingly stellar, but sure, she has the qualifications.
However, I would hasten to add that she hasn’t been actively involved in the field for almost twenty years. This is the kind of thing that might get one’s job application tossed if she were applying for a job. But worse, she has spent a huge bulk of that time as a highly partisan commentator. She is known for calling Democrats “demon-rats” and engaging in substantial, daily partisan invective. This alone calls into question the degree to which she could be an impartial prosecutor.
We should not want rabid partisans in such jobs.
However, David Bernstein notes in a post, 119-Day Prosecutor, at Good Politics/Bad Politics that none of that is the main problem with her appointment. He notes that the law would suggest that Trump can appoint no one at this point in the process. Worse, to do so would be to utterly circumvent the Senate’s constitutional role in this process.
You see, Trump actually nominated Ed Martin, a lesser-known Trump sycophant, while making him Acting U.S. Attorney in D.C. With his 120 days running low, it became clear that he would not win Senate confirmation. Trump is subbing in Pirro like a wrestling tag team move.
But that’s not really how it works. Or at least, it never has. I’m not qualified to say, but the quick reaction from those who are qualified seems to be along the lines of “um, no.” The relevant law says that if the 120 days run out, the district court with the vacancy picks someone. (In the District of Columbia that would be Chief Judge James Boasberg, who has been warring with the Trump administration, most notably on the El Salvador renditions.
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The law—28 pp546 if you care to look for yourself—is succinct. Again, I’m not one of them fancy law-reading people, so I don’t know. I suppose one could argue—and I’m sure the administration will—that the law only deals with what happens when “am appointment expires,” and by yanking Martin away before the 120th day it didn’t technically expire. Just an Ed Martin-shaped vacancy in the U.S. Attorney’s office. Ooh look, a vacancy for the President to temporarily fill.
Well, I suppose the courts can sort that out. Of course, if the courts say that okay, Mr. President, you can re-start with a second Acting Attorney when your first one proves unconfirmable, then Trump has carte blanche to send Pirro back to Fox News after 119 days, and send somebody else to do the job for a few months. And then send somebody else 119 days later. He doesn’t need to ever seek advice and consent from the Senate.
The short version is this: if Trump can just appoint a string of interims without ever getting Senate approval, he has no reason to ever get such approval. It means that he would be utterly circumventing the law and the Constitution.
Bernstein concludes:
So, usurping the Senate’s role is one possible outcome. The other is not much prettier. If the courts eventually rule that no, the President cannot just create a new vacancy every 119 days and restart the clock with a new interim appointment, then Pirro will have been unlawfully appointed, and all actions of the office under her tenure could be nullified—undoubtedly anybody indicted during that period will make that argument.
So, sure, the idea of putting Jeanine Pirro in the top D.C. federal prosector’s job should make you scream into the void because of who Pirro is—I suspect that’s part of the strategy behind the choice. Just don’t let that scream drown out your objections to Trump appointing anyone at all.
This is all just another example of what it looks like when a president simply does not take seriously his oath to “faithfully execute the Office of President of the United States” and “preserve, protect, and defend the Constitution of the United States.” Contained in that oath is the responsibility to “take care that the laws be faithfully executed.”
But, you know, it’s the party that venerates the Constitution!!
(And call me a pointy-headed elitist, but I simply do not think that cable news is where we ought to be looking for people to run the government.)
I saw an insight this morning on Bluesky that has stuck with me – the idea that Trump’s main qualification for president is that he was on TV, so he thinks that other people who are on TV are equally qualified for difficult leadership positions in government.
And he’s not wrong about that.
I take your point that Trump’s authority to appoint anyone at this juncture is the more immediately pressing issue, but I don’t think I agree that her stints as a DA and county judge over 20 years qualify her. I was a federal law clerk 40 years ago. I am not qualified to be a federal judge by any stretch of the imagination.
I also think Trump is trolling the judiciary by putting one clown after another in that office.
Why wait 119 days?
Yank her back to Faux news after a week or two, if that long, and reappoint Ed Martin, if no worse candidates are available, for another 119 days. Lather, rinse, repeat.
@Joe:
The position in question is US Attorney, just to clarify.
And I am using a very broad definition of “qualified” as per the linked post.
Keep in mind that I do not think that minimally qualified people should be appointed.
Trump once said that he liked acting or interim appointments because they enabled him to bypass Senate confirmation.
Hence Judge Winebox.
I used to believe that a president should get great deference in selecting cabinet members and federal judges and US Attorneys, but Trump is casting a TV show, and it’s long past time for the Senate to declare the clown car full. NO MAS! Trump has effectively rendered “with the advice and consent of the Senate” meaningless. An unfit office holder appoints unfit subordinates. Cue Claude Rains: “I’m shocked, SHOCKED! to find that gambling is going on here.”
@Steven L. Taylor: I understand she is being appointed as a US Attorney, not a judge. My point in that regard is only that I don’t think her DA/judge work 20 years ago gets her over the minimally qualified line. YMMV.
@Tony W:
That’s exactly right. Trump himself has praised how people look and act on TV as a chief qualification for any job.
@Steven L. Taylor:
Indeed. It seems to me unlikely that either district attorney or county judge provides any experience with federal law and court procedures.
The scary part is, as you suggest, that somewhere behind the scenes is a person making the calls for the cases handled by that office and the 119-day placeholders are just there to sign paperwork. IIUC, when the head attorney changes there has to be a court filing and response and an actual paper trail on a per-case basis. Seems to me the judges are going to be irritated if there’s a rash of those every four months.
I realize that in the grand scheme of things it’s not as important as the constitutional issues, but let’s not forget what an incompetent Pirro was when she actually was a prosecutor. My friend Susan Berman might well still be alive today if Pirro had not screwed up her case against Robert Durst to so badly he was allowed to walk.
To be clear: I am trying to avoid supporters going down the qualifications rabbit-hole, but instead have diverted down a different version of the same hole.
I am not suggesting that she could withstand Senate hearings (I definitely do not think she should be in governemnt at all). I am just saying that her cv is less concerning that other elements of her career and the broader context.
I know someone who graduated from medical school, then did all the required residence and internship work, then practiced medicine for a couple of years, then gave it up for some other line of employment. This was well over two decades ago.
If I were looking for someone to fill a medical position, this person would technically be qualified. But she’d be near the bottom of my list, especially if the position involved treating patients or making decisions on patient care.
I know I brought this on myself, but the point of the post was not to litigate qualifications.
And I would ask everyone to read my post on the subject as linked above.
It is simply more significant that Trump is trying to subvert the law here than is the fact that he has appointed yet another poor choice for an important office.
@Steven L. Taylor: I feel your pain. You even told us what the point was – subversion of the law – and many of us, including me, went after the shiny object of a partisan hack being named in place of another partisan hack. Subversion of the law is the coin of the realm for Trump. The tariffs are a subversion of Congress’ constitutional taxing power (using a bogus national emergency); the renditions, er, deportations, are a subversion of the Alien Enemies Act, AND the 5th amendment; and now the advise and consent power of the Senate is being subverted. Judge Jeanine, Kilmar Abrego Garcia’s tattoos, and Elon’s chain saw are all distractions from the power grab. Trump – or more likely Stephen Miller and/or Russ Vought – borrow from Nike and “just do it,” knowing these things will be litigated and there will be setbacks. But when the dust settles and most of what was initially desired has been achieved, it will be very hard to go back to the status quo ante. As James Carville might say, “It’s the subversion, Stupid!”
@Steven L. Taylor: Yes, absolutely, didn’t mean to hijack. I agree with you entirely, but don’t actually have much to add on that score, since you hit it right on the head.
So I took the opportunity to stick another shiv in her for her participation in the murder of my friend…
Sorry for hijacking!
@Charley in Cleveland:
Indeed!
@wr:
That’s totally fair. And I will confess that I only have tangential knowledge of the Durst case. It is a fair thing to bring up.
@Joe: It may well not. On the other hand, she’s certainly not less qualified than, say, Pete Hegseth @ DOD or JFK, Jr. @ HHS. Everything in this administration is subject to remarkable levels of relatively. Einstein would need new theories if he were alive today.
ETA: von Miese probably, too.
I bet Trump saw this as a middle finger to Senate Republicans. “Oh, you don’t like my first pick because he’s unfit? How about trying this one for size!”
He did the same with the Surgeon General position when his first choice copped too much opposition. Nominated a replacement who’s even less suitable.
@Steven L. Taylor: I think my initial comment got everyone off track, apologies.
You are correct, of course, cynically circumventing Congress is bad, and should be called out.
However, the man is cutting programs left and right that Congress has funded – after long, contentious, and heartfelt debates over the merits of each program, close votes, amendments, conferences, perhaps veto-overrides — Trump just simply cuts the program while Congress watches like a puppy at the screen door.
So yeah, he’s outside legal intent with Pirro, but, sadly, that’s hardly news at this point.
@Tony W:
I would agree that it is hardly new.
But if it ceases to be news then that means we have accepted it.