Could 'President' Boasberg Pick His Own US Attorney for DC?

Diego M. Radzinschi/ALM via AP

To paraphrase Bill Murray from Stripes: There's something wrong here. There's something very, verwrong here.

Donald Trump -- who last I checked was the duly elected president of the United States -- nominated Ed Martin to serve as US Attorney for Washington DC, and also has him serving as interim US Attorney. With only a simple majority needed for confirmation, there should have been no problem getting Martin in place before the May 20 expiration of his interim appointment. However, Martin apparently got sloppy with his disclosures, and some Senate Republicans are now balking:

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As CNN previously reported, Martin failed to disclose nearly 200 media appearances in his initial disclosures last month, and claimed under oath he did not recall some of his most controversial past statements in response to a series of questions put to him by members of the Senate Judiciary Committee.

Apparently, the big worry is around Sen. Thom Tillis, and not for the first time this year, although he may not be the only worry:

North Carolina Republican Sen. Thom Tillis, who serves on the Senate Judiciary Committee, told CNN last week he has “serious questions” about Martin, given his previous comments denigrating police officers who defended the US Capitol during the January 6, 2021, attack.

“I don’t talk about that stuff,” Tillis said when asked if the president had reached out to him.

GOP Sens. John Cornyn and Ted Cruz, who also serve on the panel, have also privately expressed concerns about supporting Martin, a source familiar with the process told CNN. Cornyn told CNN on Monday that Trump had not reached out to him, and he declined to say how he would vote on the nomination.

Normally, we could chalk this up by saying nominate in haste, repent at leisure. Trump simply needs to go back to the drawing board and find a new nominee. However, this situation has a complication, thanks to the decision to have Martin serve as interim US Attorney. If that position is not filled within 120 days by a Senate-confirmed appointment, the chief judge of the circuit can appoint an interim US Attorney to serve until that confirmation takes place.

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And guess who is the current chief judge of the DC Circuit? Oh, let's not always see the same hands  ...

Twenty-three state attorneys general sent a letter to Senate leaders on Monday urging lawmakers to swiftly confirm President Donald Trump's nominee to serve as United States Attorney for the District of Columbia, Ed Martin, ahead of a May 20 deadline, when judges on a court led by Trump-antagonist Judge James Boasberg could select a temporary replacement. 

"To put it bluntly, the District of Columbia is broken. And four years of alleged corruption, mismanagement, and derelictions of duty in the U.S. Attorney’s Office under President Biden’s appointees are in many ways to blame. The District should be made safe again. The District should have a U.S. Attorney who replaces the rule of lawfare with the rule of law. Ed Martin is the man to achieve those goals. We strongly encourage the Senate to confirm him at the earliest possible date," reads the letter, which was first exclusively obtained by Fox News Digital.  ...

If an interim U.S. attorney is not confirmed by the Senate within 120 days, judges on the federal district court for that district can name a new interim U.S. attorney until a nominee is confirmed, Department of Justice documents show. Trump antagonist Judge James Boasberg, an Obama-appointed judge at the center of legal efforts targeting Trump's deportation efforts, is the current chief judge of the U.S. District Court for the District of Columbia. 

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And it's not just the same hands, either. CNN reports the same point:

One option could be US District Judge James Boasberg appointing someone to become DC’s top prosecutor. Boasberg, a Barack Obama appointee, has presided over a number of high-profile cases challenging Trump policies, drawing the ire of the president and his allies.

That, of course, has Trump seeing red, although he doesn't mention Boasberg:

Ed Martin is going through the approval process to be U.S. Attorney in the District of Columbia. According to many but, in particular, Robert F. Kennedy, Jr., his approval is IMPERATIVE in terms of doing all that has to be done to SAVE LIVES and to, MAKE AMERICA HEALTHY AGAIN. This is a passion for Ed, more so than for almost anyone that I have seen. One of the reasons that I was so successful in winning the 2024 Presidential Election is my commitment to Health, and helping to Make America Healthy. The Cost of the Chronic Disease Epidemic has gotten out of control over the past four years of the Biden Presidency. We are going to take our Country BACK, and FAST. Ed Martin will be a big player in doing so and, I hope, that the Republican Senators will make a commitment to his approval, which is now before them. Ed is coming up on the deadline for Voting and, if approved, HE WILL NOT LET YOU DOWN. When some day in the future you look back at your Vote for Ed Martin, you will be very proud of what you have done for America and America’s Health. MAKE AMERICA GREAT AGAIN!

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Thus we have a truly absurd situation. Forget how we arrived at it; this is a constitutional conflict. How can an Article III official appoint an Article II official who will almost certainly appear before him? That's not just a constitutional conflict, it's a conflict of interest. Bosberg will essentially appoint his own prosecutor for cases that directly involve inherent Article II powers and authority. Absurd doesn't do this situation justice; imagine this in the context of criminal prosecutions. If the prosecutor owes his job to the judge and the judge chose him to prosecute, how can that possibly be seen as impartial for the defendant?

In the long term, this process has to be changed to keep Article II officials accountable to the Article II authority -- the president and/or his designees, such as the Attorney General. Having judges appoint prosecutors who will appear before them is simply bizarre. And in this case, it gives Boasberg the chance to short-circuit Trump administration policy by perverting the constitutional order rather than addressing legal challenges through the impartial application of law and the Constitution. 

In the short term, the only way to address this absurdity is to confirm Martin. The controversy could have been avoided had Martin been more disciplined about his disclosures and/or Trump had vetted Martin more thoroughly, but nothing in these issues suggests that Martin is corrupt, incompetent, or unfit for office either. Tillis et al need to swallow their objections and get Martin in place. 

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Addendum: It doesn't look like Tillis will budge:

If the Judiciary Committee can't send his nomination to the floor, Thune can still call for a floor vote. But failing to get the committee approval makes that even more problematic. The White House had better have a Plan B ready to go if this fails. 

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