Senators Al Franken and Amy Klobuchar are concerned about the Donald Trump administration these days.
There’s his proposed cuts to key social programs, his campaign’s links with the Russian government, his rhetoric on North Korea. But one of their concerns is more parochial: the vacancy at the position of U.S. attorney for the district of Minnesota. Since former U.S. Attorney Andrew Luger was one of dozens of Barack Obama-appointed attorneys to be fired en masse in March, the position of the federal government’s top prosecutor in the state has technically sat vacant.
Klobuchar and Franken, taking on the customary advisory role of home-state senators, have convened panels, interviewed applicants, and lobbied the White House privately and publicly to move ahead in selecting a new U.S. attorney.
For now, those efforts have been for naught. It’s unclear when the Trump administration will name a nominee, and it has bypassed Minnesota as it makes relatively quick work of naming and confirming candidates for the other 93 U.S. attorney positions nationwide.
The idea of an important office sitting empty causes some reflexive alarm — even seasoned pundits raise concern when positions from attorneys to ambassadors to assistant secretaries are left vacant. But not all vacancies are created equal, and just because there’s no one officially at the helm of the U.S. Attorney’s office doesn’t mean the office’s work has come to a standstill.
All attorneys dismissed
When there is a transition between administrations — especially when one party passes power to another — it’s expected the new government will need time in putting forth nominations for positions, which the U.S. Senate will need to confirm. The involvement of the Senate, a body not known for acting swiftly, means it can take well past the first hundred days to staff an administration.
According to an analysis from the Washington Post and the Partnership for Public Service, however, the Trump administration is lagging in comparison to its predecessors. As of September 28, just 152 Trump nominees had been confirmed by the U.S. Senate; at that point in their presidencies, Barack Obama and George W. Bush had gotten through twice as many.
Beyond confirmations, the pace at which the Trump administration has put forward nominees for key positions has not earned it many new friends, both at home and abroad. Dozens of ambassadorships do not have a nominee, even for key allies such as Australia and strategically important countries like Turkey.
Presidential administrations have approached the appointment of U.S. attorneys differently. Barack Obama retained a relatively large number of the attorneys appointed by George W. Bush, while Bush fired many of the attorneys appointed by Bill Clinton.
In the weeks after Trump’s inauguration, some Obama-appointed U.S. attorneys did resign. However, the Department of Justice raised eyebrows in March when it asked for the resignations of the remaining 46 U.S. Attorney holdovers. Some of them found out via the media that they had effectively been fired by Attorney General Jeff Sessions; one especially high-profile U.S. attorney, Preet Bharara of the Southern District of New York, was reportedly fired after refusing to submit his resignation.
These developments prompted the Senate Judiciary Committee’s top Democrat, Sen. Dianne Feinstein, to remark she was “surprised” and “concerned” with the moves.
Andrew Luger was one of the attorneys swept up in that round of firing. Appointed by Barack Obama after the official recommendation from Franken and Klobuchar, Luger served for three years. Where past U.S. attorneys had focused on issues of white collar crime or other traditional areas of federal law enforcement, Luger made a name for himself by elevating terrorism and home-grown extremism as signature issues in his office.
Luger’s Minnesota office became a national leader in cases related to the Islamic State, aggressively pursuing cases of radicalization in a way that occasionally earned pushback from the local Somali community.
When Luger was fired, Klobuchar called on the administration to keep him on. “I will urge that he be renominated,” Klobuchar said in a statement, adding she had spoken with Sessions and Deputy Attorney General Rod Rosenstein about it. “Andy has served our state and its people well,” she said.
A delayed process
Despite that advocacy from Klobuchar and Franken, the administration appears to have passed on retaining Luger. In May, he joined the newly-opened Minneapolis office of Jones Day, the largest law firm in the U.S.
Senators are typically responsible for assisting the administration with nominations for their home-state U.S. attorneys, and will collect and interview applicants themselves. Franken and Klobuchar accepted nominations through June 9, convening what Franken called a “distinguished nonpartisan group of attorneys and law enforcement professionals” to review the applications.
The two senators passed on a list of what they deemed to be qualified applicants to the White House earlier in the summer. Minnesota’s three Republican members of Congress, Reps. Tom Emmer, Jason Lewis, and Erik Paulsen, passed on a recommendation of their own: Kevin Magnuson, a Minneapolis attorney who co-founded the GOP-aligned Minnesota Jobs Coalition.
Despite these efforts and recommendations from Minnesota Republicans and Democrats, each time the administration announces a “wave” of nominations for U.S. attorney spots around the country, Minnesota is not included. According to Franken’s office, the White House interviewed some of the candidates recommended by the panel convened by the senators.
To hear Minnesota’s senators tell it, this is not an ideal situation. In a statement, Franken said it is “important that Minnesota have a fully staffed U.S. Attorney’s Office, and that includes the Office’s top post… I hope that the administration moves with all due speed to fill this important position.”
Franken’s office added that of the 17 states with two Democratic senators, only two, Massachusetts and Illinois, have gotten nominations for U.S. attorney jobs.
Not everyone shares Franken’s concern with the speed of Trump’s nominations, though. Anne Joseph O’Connell, a professor of law at the University of California at Berkeley, says that Trump has actually moved relatively quickly with appointing U.S. attorneys versus other posts.
“According to my data, he’s quicker on U.S. attorney nominations than President Obama,” she said. Trump has submitted nominees for 48 U.S. attorney positions out of a total of 96. Twenty-four of them have been confirmed.
Office hums along
The fact that the Minneapolis U.S. attorney’s office lacks a top official, however, does not mean that it is understaffed.
Currently, the acting attorney in charge is Greg G. Brooker, who previously was the chief of the office’s civil division. He leads an office of 125, which includes 50 assistant U.S. attorneys.
According to some legal experts, having a competent acting U.S. attorney is more than adequate to ensure that important federal cases are prosecuted in Minnesota.
Berkeley’s O’Connell puts it this way: “I feel like there’s a dominant view among commentators of President Trump’s appointments, or lack thereof, that is, he’s been slow, we have all these acting [officials], and it’s not good to have actings.
“Two of those are descriptive and one is normative. Yes, he’s slow, two, we have these actings, and three, in certain types of positions, I’m not worried at all.”
O’Connell explains that under the law, acting U.S. attorneys have the same authority as an official confirmed by the Senate, which makes it different from other administration positions, like those at the Federal Elections Commission and other federal regulators. “There’s no worry about major crimes that are going go un-investigated and not prosecuted,” she says.
Stephen Saltzburg, a professor of law of George Washington University, says that in many instances, it’s hard to tell whether an office is led by an acting U.S. attorney or a confirmed one.
“Unless most of the experienced lawyers leave, which is really unusual, the office is going to keep purring along. When a new U.S. attorney comes in, the only thing that happens, there might be a slight change in emphasis on the kinds of cases they want to spend resources on.”
Who will it be?
The group of attorneys considered to be in the running for the job provide some hints as to what the new direction of the office could be, and what priorities the Trump administration wants to set for federal law enforcement in Minnesota.
In addition to Magnuson, whom the Star Tribune reported was recommended by Minnesota’s three GOP congressmen, the shortlist may include Jeffrey Paulsen, a federal prosecutor who established a reputation for going after street gangs in Minnesota, Joseph Dixon, an alumni of the Minnesota U.S. Attorney’s office who defended the Archdiocese of Minneapolis and St. Paul in a high-profile 2015 case, and W. Anders Folk, a former assistant Minnesota U.S. attorney who specializes in white-collar criminal defense at his practice in Minneapolis.
It’s unclear when, exactly, the final decision will come. The U.S. Department of Justice did not respond to request for comment for this story. Some Republicans have suggested that the U.S. Attorney nomination has been delayed due to Franken’s opposition to Trump’s selection of Minnesota Supreme Court Justice David Stras to the federal bench.
Senate Majority Leader Mitch McConnell has said the lack of a so-called “blue slip,” which Franken withheld for Stras, shouldn’t stop nominees from moving forward, so Stras may get a hearing yet.
O’Connell says that it is customary for members of Congress to use state appointments like these to negotiate with the administration and attempt to influence the eventual nominee.
“It happens over judges, it happens over U.S. attorneys and U.S. marshals,” she says. “These are norms that have developed. Democrats have caused struggles and Republicans have caused struggles.”
According to Saltzburg, “Eventually, they negotiate this stuff. Fortunately, in the meantime, it’s not going to do any harm.”
“I wouldn’t worry if I were a Minnesotan.”