Nearly three months after firing every U.S. Attorney appointed by his predecessor, President Donald Trump finally nominated his first batch of replacements for the long-vacant prosecutor jobs on Thursday.
None of the seven people Trump sent to the Senate, however, would fill the vacancies which are most relevant to the enforcement of white-collar criminal law.
Trump’s initial list covers the Washington, D.C. prosecutor’s office, all three districts of Alabama — the home state of his Attorney General, Jeff Sessions — and a few other red states. It does not name lead prosecutors for the Southern District of New York (SDNY) — the most powerful single U.S. Attorney’s (USAs) office and the clearinghouse for the vast majority of important white-collar casework — or for the Los Angeles, Chicago, Houston, and Dallas offices with jurisdiction over other finance industry hubs.
Former SDNY head honcho Preet Bharara was the most controversial name on Trump’s surprise list of firings in March, since Bharara was in the midst of investigating Trump’s businesses. He says he was fired only after refusing to take a third phone call from the new president. Trump’s personal attorney, Marc Kasowitz, has reportedly taken credit in private for getting Bharara fired.
Whatever the true circumstances of Bharara’s firing, white-collar criminologist and financial fraud expert Bill Black told ThinkProgress, Trump risks locking up the gears of the justice system by leaving the SDNY job and so many others empty.
“It is not just strange but harmful to get rid of U.S. Attorneys en masse without having replacements,” Black said. “The whole system backs up when you don’t appoint new people. Nobody makes decisions, everybody’s too afraid to make decisions.”
But fired U.S. Attorneys don’t take their staff with them. The offices they oversee remain staffed, the lights on, the phones ringing.
“I really think, ‘so what?’” heavy-hitter Republican lawyer Sol Wisenberg said. “No one’s going to stop work on a case or not open a case because there isn’t a political appointee yet.”
Trump’s very Clintonian purge
Not all U.S. Attorneys (USAs) are political appointees, but most are. A handful are spared from post-election shake-ups because they rose through the career attorney ranks instead of the political patronage system.
But Trump gave 46 holdovers the boot on the same day — an unusually swift and stark version of the standard presidential practice of replacing your predecessor’s team gradually.
“He created an absolutely gratuitous problem,” Black said. “There’s never been an explanation for saying they knew it’d be stupid to do this and then it’s exactly what they chose to do.”
“Pretty tall talk for a one-eyed fat man”
But Wisenberg, also a white-collar crime specialist whose career has overlapped with Black’s in the past, said that while Trump’s all-at-once purge was atypical, it wasn’t entirely unprecedented. The last man to do it — and inspire similar whispers of an effort to stifle an investigation — was President Bill Clinton, who Wisenberg investigated as a member of Special Prosecutor Ken Starr’s team in the 1990s.
“It is unusual that they did them all at once. I think the only other person to do that was Clinton,” Wisenberg said. “Then, people said Clinton fired ’em all because he wanted to get rid of the guy in Little Rock [to stifle an investigation in the 1990s]. Now, people speculate Trump was just trying to get rid of Preet.”
“Maybe that’s true and maybe it’s not,” Wisenberg said. “But the idea that it’s slowing anything down is just very wrong.”
Work continues at the Assistant USA and line-attorney level in these offices, perhaps hampered to some degree by the indecision Black sees filling these power vacuums.
But Trump’s heavy emphasis in the campaign on making radical breaks from the Obama administration, especially on law enforcement policy, make his struggles with personnel management embarrassing at minimum.
“They came into office claiming there’s a catastrophe in law enforcement, America’s falling apart and you can’t go anywhere safely. As a criminologist, that’s all bullshit. But if it were true, then you ought to be doing something about it,” Black said.
Here, at least, Wisenberg agrees. Trump’s rhetoric on crime seems like “pretty tall talk for a one-eyed fat man,” he said, quoting an old Western movie. “Obviously he hasn’t had a stack of names in a lot of these agencies. My understanding is he’s had a hard time with staffing everywhere.”
“The loyalty game”
There is an argument that Trump could hardly do worse in prosecuting white-collar crime than his predecessor, who favored sketchy settlements over criminal cases and took a conciliatory tack with Wall Street on the heels of the worst mass fraud and economic collapse in almost a century. The rate of white-collar prosecutions hit a 20-year low in 2015.
Bharara himself had earned a reputation in the media as the “sheriff of Wall Street” in recent years — a reputation partially earned and partially invented, white-collar criminologist and financial fraud expert Bill Black told ThinkProgress.
“It depends what question you ask. In the valley of the blind, who’s the one-eyed leader? Preet Bharara, no question,” he said. “But how much did he accomplish compared to what should have been accomplished? Then he looks not so good.”
“He managed to get zero criminal prosecutions of the elite bankers who actually led the fraud schemes that caused the last crisis, on zero attempts,” Black said. “He was always called out on strikes without ever swinging the bat.”
“If they do that, and it leaks…there will be a civil war in that office.”
Yet while cynics can look at Obama’s errors of omission and muse that it couldn’t get much worse, as any Star Wars fan knows: It can always get worse.
If Trump wants to undermine white-collar criminal enforcement further, Black said, his decisions about the future of the SDNY will be telling. But the question is less “who” than “how.” The integrity of U.S. law enforcement against the crimes of the wealthy relies as much on the process Trump conducts as the names he eventually picks.
“Clearly your most important appointment is SDNY, and it’s easy to get really good people,” Black said. The foot-dragging therefore raises questions. “Are they actually worried? SDNY has venue and jurisdiction to investigate Donald Trump, Jared Kushner, and their families.”
A coveted job, an enormous bench of candidates, and an immense potential that the next person in Bharara’s old office will end up crossing swords with the White House — it’s a recipe for disaster.
“Maybe Trump and Sessions see that as a danger and are gonna play the loyalty game,” Black said. “If they do that, and it leaks that somebody took the job on that basis after pledging loyalty or anything close to it, then there will be a civil war in that office.”
“Given this president and his thing about loyalty, this might pose a real problem,” Black said.
The SDNY is uniquely powerful among federal prosecutors’ offices and independent from its nominal bosses in Washington. The “civil war” Black imagines would see “not dozens, but hundreds” of angry op-eds from prominent lawyers and distressed phone calls to Senators from influential donors.
But there’s also a more innocent potential explanation for the delay: politics and inexperience.
“You can have a good resume and not know what the fuck you’re doing.”
Presidents traditionally rely on friendly members of the Senate to pick out politically-appointed federal prosecutors in their states.
Trump doesn’t have that luxury in the key offices for white-collar enforcement. New York and California haven’t had a Republican senator since the 1990s. Mark Kirk’s defeat in November means there is no Republican senator to suggest a replacement for the USA Trump fired in Chicago, home to the highly technical commodities and futures markets of the Mercantile Exchange.
“Senators totally control” the U.S. Attorney nominations “so typically it takes a lot longer when you don’t have a senator from your party,” Wisenberg said. “Usually they pick people with very good resumes,” he said, “but you can have a good resume and not know what the fuck you’re doing.”
“Ascribe whatever motive you want to what [Trump] did — maybe it was a smokescreen to get rid of Preet, you can think what you want,” Wisenberg added. “But I think a lot of is simply that the Trump people are behind on a lot of things.”