On November 1, 2017, President Donald Trump made his eighth group of nominations of prospective United States Attorneys. This group of seven nominees brings the current number of Trump’s United States Attorney nominations to fifty-three. The seven lawyers Trump nominated last week are:
- John C. Anderson, a lawyer with Holland & Hart in Santa Fe, New Mexico, to be the United States Attorney for the District of New Mexico
- Joseph D. Brown, the elected District Attorney for Grayson County, Texas, to be the United States Attorney for the Eastern District of Texas
- John H. Durham, the interim United States Attorney in the District of Connecticut; to be the United States Attorney for the District of Connecticut
- Brandon J. Fremin, a Louisiana Assistant Attorney General and Director of the Attorney General’s Office’s Criminal Division, to be the United States Attorney for the Middle District of Louisiana
- Robert Kyoung Hur, the Principal Associate Deputy Attorney General with the United States Department of Justice, to be the United States Attorney for the District of Maryland
- Ryan Patrick, the managing partner with The Law Office of Ryan Patrick and Senior Counsel with Hoover Slovacek in Houston, to be the United States Attorney for the Southern District of Texas
- McGregor W. Scott, a partner in the Sacramento office of Orrick, Herrington & Sutcliffe, to be the United States Attorney for the Eastern District of California
Unsurprisingly, all seven of these nominees are former prosecutors in keeping with Trump’s focus on those with prosecutorial experience; around 90% of Trump’s nominees have either state or federal prosecutorial experience. This group includes both a former Presidentially-appointed United States Attorney (McGregor Scott of California, who served in the George W. Bush Administration from 2003 to 2009) and an elected District Attorney (Joseph Brown of Texas, District Attorney of Grayson County north of Dallas). Brown’s nomination reflects Trump’s continued emphasis on state prosecutorial experience in a way that is different from that of former President Obama. Brown is the seventh elected District Attorney nominated by Trump for a United States Attorney position; 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 state prosecutors in significant numbers is in keeping with his executive order emphasizing DOJ efforts to fight violent crime.
While the majority of Trump’s nominees to this point have come from the smaller offices as DOJ categorizes them, this batch comes primarily from the larger offices. All of the offices for which Trump made nominations in this round are either large (Eastern California, Connecticut, Maryland, New Mexico, and Eastern Texas) or extra large (Southern Texas), except for the Middle District of Louisiana (a small office).
Trump is also now beginning to make more nominations in states with two Democratic Senators – here, California, Connecticut, Maryland, and New Mexico. While the Senators in California, Connecticut, and New Mexico all indicated their recommendation of and support for their state’s nominees, Trump’s nomination of Robert Hur in Maryland apparently did not come as a result of a recommendation from Maryland’s Senators. Senators Ben Cardin and Chris Van Hollen issued a statement after the nomination that, although they did not recommend Hur to the Trump Administration, they would support him nonetheless. Trump’s announcement of a nominee who the state’s Senators may have not signed off on is an interesting development. The Senate continues to follow the tradition by which both home state Senators must submit “blue slips” demonstrating their approval of a Presidential nominee before the Senate will move a nomination forward. Given that some Senators have recently announced they intend to withhold the “blue slips” of certain Trump judicial nominees where the Senators disagree with (or were otherwise not consulted about) the nominations, any nominations moving forward made without close consultation with home state Senators could bring closer scrutiny of the role of the “blue slip” tradition in the nominations process.
Here are a few stray observations:
- Durham’s nomination in Connecticut comes on the heels of the resignation of one of the last of former President Obama’s United States Attorneys. Deirdre Daly was one of just four Obama United States Attorneys who was allowed to remain after more than forty others were dismissed in March 2017; she resigned on October 27, 2017. Rick Hartunian of the Northern District of New York left office in June 2017, while Eastern District of Virginia United States Attorney Dana Boente, who has been serving the Trump Administration as the Acting Assistant Attorney General in the Department of Justice’s National Security Division as well as the Virginia United States Attorney, announced on October 27, 2017, has submitted his resignation, announcing that he would step down once his successor is confirmed. (John Huber of Utah, who became Obama’s United States Attorney in June 2015, was renominated by President Trump and confirmed in August 2017.)
- Durham was previously well known in the Northeast as having been the leader of the team responsible for investigating notorious mobster James “Whitey” Bulger in the 1990s and for prosecuting corrupt FBI agents in a trial that served as source material for the Martin Scorsese film “The Departed.” Durham also led the DOJ team who investigated the “enhanced interrogation techniques” used by the CIA after 9/11. These efforts no doubt inform his role as the subject of one of the more memorably intense quotes of all time: “All I know is, if I were being investigated by John H. Durham, I’d probably save him the trouble and commit suicide.”
- As noted above, New Mexico’s two Democratic Senators recommended John Anderson’s nomination to the Trump Administration, but they were also joined by New Mexico’s lone Congressional Republican in that recommendation. While the Presidential nominations process typically involves only members of the Senate (the body that reviews the nominations), a non-Senator recommendation does have precedent in this nomination cycle. Vermont’s Christina Nolan (currently awaiting confirmation) was recommended to President Trump by Vermont Senator Patrick Leahy and Vermont Governor Phil Scott (as Senator Bernie Sanders may have may have recused himself from the process in the context of an investigation into his wife’s role in a failed land deal that led to the closure of Burlington College in Vermont).
- Maryland’s Robert Hur makes the third former United States Supreme Court clerk who Trump has nominated to serve as a United States Attorney (along with John Bash of Texas and Stephen McAllister of Kansas).
- Louisiana’s Brandon Fremin became the Louisiana Attorney General’s Criminal Director in January 2016. Since then, sixteen Louisiana public officials have been charged with corruption offenses, many of which the Attorney General’s Office is prosecuting.
A recent batch of confirmations brings the total number of confirmed Trump United States Attorneys to twenty-four; there are thirteen additional nominees who have cleared the Senate Judiciary Committee and are on the Senate Executive Calendar awaiting confirmation by the full Senate. With those confirmations and any others that follow in the next couple of months, Trump is likely to have at least half his United States Attorneys in place by the end of his first year in office. This would make the Department of Justice an outlier in executive agencies with a substantial percentage of nominees in place, and would put Trump a good deal ahead of where President Obama was at the end of his first year in office. As of January 2010, the Senate had only confirmed thirty-one of Obama’s United States Attorneys. While 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 – twelve of the thirty-one Obama United States Attorney confirmations during his first year as President happened between November 2009 and January 2010. As such, it is a good bet that Trump will have around half of his United States Attorney nominees in place as 2018 gets started.