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.)
