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Trump Announces Ninth Wave of United States Attorney Nominations, First Trump Appointees Named to Attorney General’s Advisory Committee

On November 17, 2017, President Donald Trump made his ninth group of nominations of prospective United States Attorneys. This group of four nominees brings the current number of Trump’s United States Attorney nominations to fifty-seven.  The four lawyers Trump nominated last week are:

  • Joseph P. Kelly, the elected District Attorney of Lancaster County, Nebraska (county of state capital Lincoln), to be the United States Attorney for the District of Nebraska

  • Scott W. Murray, the elected County Attorney for Merrimack County, New Hampshire (county of state capital Concord), to be the United States Attorney for the District of New Hampshire

  • David Weiss, the Acting United States Attorney for the District of Delaware, to be the United States Attorney for the District of Delaware

  • Billy J. Williams, the court-appointed United States Attorney for the District of Oregon, to be the United States Attorney for the District of Oregon

Trump’s nomination of four current prosecutors follows suit with his previous nominations, as around 90% of Trump’s nominees have either state or federal prosecutorial experience. Three of the four nominated in this group (Kelly, Murray, and Williams) have state prosecutorial experience, as a third of Trump’s nominees do. Although former President Obama nominated a similar number of former state prosecutors (around 30% of his nominees), Trump has emphasized state prosecutorial experience differently from the way Obama did. Kelly and Murray are the eighth and ninth elected District Attorneys nominated by Trump for a United States Attorney position, making more than 15% of Trump’s United States nominees to this point elected state prosecutors. While three of Obama’s more than 100 total United States Attorney nominees had prior service as an elected District Attorney, none was serving in that capacity at the time of nomination. As noted before, studies have shown that violent crime is more often addressed by state courts than by federal courts. Trump’s nomination of elected state prosecutors in significant numbers is in keeping with his executive order emphasizing DOJ efforts to fight violent crime.

Here are a few stray observations:

  • Trump has both named United States Attorney nominees and seen his nominees confirmed at a quicker pace than that of former President Obama. Trump has nominated United States Attorneys at nearly twice the pace former President Obama did - at this point in his Presidency, Obama had only named twenty-nine United States Attorney nominees to Trump’s now fifty-seven. A flurry of Senate activity in early and mid-November brought fifteen additional United States Attorney confirmations during this session of Congress, bringing the total number of confirmed Trump United States Attorneys to thirty-nine. As of this point in November 2009, the Senate had confirmed twenty-four of Obama’s nominees.

  • While the White House announcement about Nebraska’s Joe Kelly noted his prosecution of “homicide, robbery, sexual assault and white collar” crimes, Kelly has also been the leader in a number of progressive law enforcement efforts since becoming Lancaster’s County Attorney in 2010. Kelly has supported the county’s drug court and veterans court programs, and he partnered with the Vera Institute of Justice to study his office’s exercise of prosecutorial discretion in an effort to promote and improve racial equity in the county’s criminal justice process. New Hampshire’s Scott Murray also recently played a part in his county’s creation of a drug court to help address drug-related criminal activity in the county (more than 40% of the county’s criminal caseload). Murray is also a “key stakeholder” in his county’s mental health court.

  • A clarification to an earlier post about President Obama’s United States Attorneys: While I previously noted that the resignation announcements of Deirdre Daly in Connecticut and Dana Boente in Eastern Virginia would be the final resignations from the group of Obama United States Attorneys, I neglected to include Randy Seiler of South Dakota on that list. In 2015, Seiler (then serving as South Dakota’s Acting United States Attorney) was nominated by Obama to serve as the Presidential appointee there, but the Senate never acted on his nomination. Seiler was later appointed by the Court to serve as the United States Attorney until a successor is confirmed by the Senate; despite being an Obama nominee, Seiler’s court-appointed status allowed him to remain in the position after more than forty of Obama’s appointees were dismissed in March 2017. Earlier this month, Seiler announced his resignation effective at the end of the year. Trump has nominated a successor (Ronald Parsons of Sioux Falls), but that nomination still sits in the Senate Judiciary Committee.

  • Attorney General Jeff Sessions recently named the first group of Trump United States Attorneys to the Attorney General’s Advisory Committee (AGAC). The AGAC is the representative group of United States Attorneys who advise the Attorney General on issues including policies and procedures, management of the Department of Justice, cooperation with state and local law enforcement, improvements to the criminal justice system, and other matters of local or regional significance. The AGAC historically has around twenty members at any one time – seventeen United States Attorneys (representing the different office sizes, different parts of the country, different issues of focus, and diversity concerns) and three non-United States Attorney representatives from each of the three divisions within United States Attorney’s Offices (Criminal, Civil, and Appellate). Attorney General Sessions' recent appointees are:

    • Richard Moore of Southern Alabama (Chair)

    • John Huber of Utah (Vice Chair)

    • Justin Herdman of Northern Ohio

    • Robert Higdon of Eastern North Carolina

    • Jeff Jensen of Eastern Missouri

    • Jessie Liu of D.C.

    • Joshua Minkler of Southern Indiana

    • Bryan Schroder of Alaska

    • R. Trent Shores of Northern Oklahoma

  • Each of these nine United States Attorneys previously served as Assistant United States Attorneys, and so each is already familiar with the workings of the Department of Justice. Although these appointments are made by the Attorney General, Trump’s focus on state prosecutorial experience is also evident here, as four of the nine are former state prosecutors and will likely make effective cooperation with state and local law enforcement a regular feature of the AGAC agenda. (Sessions' appointment of former FBI agent Jeff Jensen of Missouri to the AGAC will presumably be helpful in the context of effective cooperation between the United States Attorney’s Offices and the FBI as well.)

Trump has now made United States Attorney nominations for all the districts from states with two Republican Senators except for five: Arizona; Louisiana (Eastern and Western); Oklahoma (Western); and South Carolina. Given Trump’s early focus on making nominations in states with two Republican Senators (where the Senatorial “blue slips” indicating approval of Presidential nominations are likely easier to come by), the reasons for Trump’s failure to make nominations in these districts likely vary from district to district. In Eastern Louisiana, for example, Trump declined to nominate the attorney who appeared to be the preferred candidate of one of Louisiana’s Senators, so the vetting process for someone to head that office has continued. In districts such as South Carolina and Arizona, though, there has not been any movement on nominations for attorneys whose names have apparently been forwarded to the Administration.

Even if there are only a small number of districts from states with two Republican Senators still waiting on nominees, the remainder of the year will likely be a busy period for United States Attorney nominations if history is any indicator. Obama made twelve such nominations between Thanksgiving and New Year’s Eve 2009 and saw seven of his nominees confirmed during this same period. Although there are fewer work days in the Senate toward the end of the year due to holidays, the Senate often gets more done in less time during this period. As such, it is still a decent bet that Trump will enter 2018 with the additional United States Attorney confirmations necessary to put him close to, if not over, the halfway mark to having nominees confirmed for all ninety-four districts.

Copyright © 2017 Womble Bond Dickinson (US) LLP All Rights Reserved.

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About this Author

Ripley Rand, Womble Carlyle Law Firm, Criminal Defense Attorney
Partner

Ripley Rand brings more than twenty years of federal and state courtroom experience to Womble Carlyle’s White Collar Criminal Defense Team. His practice focuses on white collar criminal defense, health care fraud defense, internal investigations, and regulatory enforcement.

In 2010, Ripley was nominated by President Barack Obama to serve as the United States Attorney for the Middle District of North Carolina. After being unanimously confirmed by the United States Senate, Ripley was the United States Attorney...

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