One month after purging all remaining Obama administration holdovers from federal prosecutors’ offices nationwide, Attorney General Jeff Sessions still has not replaced any of the departed prosecutors.
The nearly 100 separate federal prosecutors’ offices are currently led by interim and acting U.S. Attorneys (USAs), who generally struggle to command the same influence and credibility with local officials and police departments, a former Justice Department (DOJ) official told the Washington Post.
“It’s like trying to win a baseball game without your first-string players on the field,” Ronald Weich told the paper.
This is not normal and not accidental. Sessions’ decision to demand the resignations of nearly four dozen USAs who had not yet quit is atypical.
Incoming administrations tend to stagger their overhaul of the top prosecutor jobs to allow maximum continuity in those offices as they replace their predecessor’s team with one more to their liking. The Senate must confirm appointees to top federal prosecutor jobs in the 93 different jurisdictions nationwide, a time-consuming process with which Sessions is familiar.
In ditching all of Obama’s holdovers at once, Sessions gifted the Senate a large backlog. He and President Donald Trump have yet to nominate any prosecutors.
State and local prosecutors and police would seem to have greater influence in shaping casework and charging decisions as a result. To whatever extent the people in those non-federal jobs are aligned with the Trump-Sessions line on being tougher instead of smarter in law enforcement, the vacancies Sessions created could serve the administration’s larger goals of reversing the bipartisan consensus in favor of reform that emerged late in Obama’s tenure.
But that consensus is even more entrenched in the states than it is inside the Washington beltway and Manhattan policy wonk circles that birthed it, multiple experts told ThinkProgress. And the career prosecutors currently managing federal jurisdictions on an interim basis are more likely to reflect that deep support for a smarter approach than whoever the White House might eventually pick.
“The movement is much stronger in the states,” the American Civil Liberties Union’s Udi Ofer said, citing state legislative movement in Louisiana, Mississippi, Florida, Michigan, and Texas, and Election Day wins for reform ideas even in states that broke for Trump over Clinton.
“There’s literally not a day that goes by that there isn’t some activity in the states involving both Republicans and Democrats trying to undo mass incarceration,” Ofer, who runs the ACLU’s Campaign for Smart Justice, said. “If anything it’s Washington, D.C., that’s playing catch-up to the states.”
Deferring to state actors, then, would not help Sessions reassert old-timey notions that harsher punishments and less restrained policing are essential to public safety. And the recent reversal in consensus may also help explain the delay.
“You would think the law-and-order president would have his replacement U.S. Attorneys lined up in pretty short order,” said Ames Grawert of the Brennan Center for Justice.
“I think it’s more likely he wants USAs who share his views. If we’re being charitable, maybe he’s waiting until he has some policy directives announced to pick the people who will implement them.”
The first 100 days of Trump’s term have been full of ominous signs, a forthcoming report from Grawert’s team argues: Executive orders aimed at building the case for new federal crimes and tougher sentencing guidelines, senior DOJ nominees who oppose sentencing reform, Sessions’ public overriding of local officials on police oversight in Baltimore and private hiring of a Tennessee prosecutor named Steven Cook who accuses reformers of being “soft on crime” and “anti-law enforcement,” among many other datapoints.
Sessions and Trump will have an easier time putting their retrograde ideas into action once they start filling all these empty U.S. Attorney chairs.
Trump’s team of political outsiders have stumbled in transitioning to power over a government much larger and more complicated than they seem to have anticipated. It’s possible that the lingering power vacuum across the federal prosecutions system is a similar foible born of administrative naivete.
That’s less plausible here, given Sessions’ long and close involvement with the DOJ bureaucracy and processes both in the Senate and as a former federal prosecutor himself. The void seems more like a byproduct of there being a short bench of people who share his attitudes, Ofer said.
“There is an extraordinary bipartisan consensus that the war on drugs has been a failure and that tough-on-crime rhetoric does not make our nation safer. Everybody from the ACLU to the Koch Brothers and Freedomworks agrees about that. It’s a reality the DOJ has to operate in,” he said.
“And then you have Attorney General Sessions resurrecting the rhetoric of the 1980s and ’90s. I’m just not sure who’s behind that. I cannot find a single advocacy group, even on the right, that will back up the rhetoric that’s coming out of the DOJ right now.”
For supporters of the “smart justice” ideas that are advancing daily in state legislatures, Sessions’ dithering with the U.S. Attorneys system is good news — and doomed not to last.
“His first big memo to prosecutors said…you should work with state and local officials to decide when to charge their cases in federal court because we can slap longer sentences on that way,” Grawert said.
“He’s not going to be shy about using federal power and mandatory minimums whenever he can.”