Trump’s top federal prosecutor in L.A. could face new challenge after appellate ruling

A 9th Circuit Court of Appeals ruling this week has raised new questions about the legality of tactics used by the Trump administration to keep Bill Essayli atop the federal prosecutor’s office in Los Angeles.

The federal appellate court ruled Monday that the Department of Justice cannot keep an official who has not been confirmed by the Senate in charge of a U.S. attorney’s office simply by giving that person a different title and the full powers of the job.

The ruling stemmed from a challenge to the authority of Nevada’s top federal prosecutor, Sigal Chattah, whom the Justice Department had designated “first assistant” U.S. attorney. With no one above her in the office, Chattah has seemingly been calling the shots on federal prosecutions in the state, handling cases referred by the FBI, the Drug Enforcement Administration and other law enforcement agencies.

The Trump administration has used a similar workaround to keep Essayli running the U.S. attorney’s office in L.A. without going through the Senate confirmation process, where he likely would have faced strong opposition from California’s elected representatives.

Essayli, 40, has continued leading the federal prosecutor’s office in the Central District of California as “first assistant” despite a federal judge’s ruling last year that said he was unlawfully serving as the acting U.S. attorney. The Justice Department did not appeal that ruling.

Instead, Essayli’s office has maintained that he can prosecute and supervise cases as first assistant. He was also appointed as a “special attorney” by the Trump administration, a title similarly held by Chattah in Nevada.

A former Republican member of the California State Assembly from Riverside, Essayli has used his position to act as one of Trump’s fiercest legal foot soldiers. He has pursued criminal charges against protesters, activists and immigrants while dropping cases involving administration allies and supporting lawsuits challenging transgender and environmental policies in California.

In the Monday ruling, Judge Eric D. Miller, a Trump appointee, wrote for the unanimous three-judge panel that the attorney general does not have the authority to “create a de facto acting U.S. attorney by delegating all of the functions and duties of the U.S. attorney to someone else.” The panel upheld a lower court’s order disqualifying Chattah.

The ruling did not spell out what duties a first assistant U.S. attorney can or cannot lawfully perform.

The Justice Department said in an email that it disagrees with the 9th Circuit’s decision and plans to appeal it to the Supreme Court. The agency did not respond to questions about what effect the ruling could have on Essayli.

The U.S. attorney’s office in L.A. did not respond to a request for comment.

James Pearce, an attorney who argued the Nevada case before the 9th Circuit, said the ruling could have implications in Los Angeles.

“There’s going to be some significant questions about whether Essayli can be doing what he has been doing,” Pearce said.

Essayli was sworn in as interim U.S. attorney last April. Around the time he hit that role’s 120-day limit, he resigned as interim and was allowed to continue under his current titles by then-Atty. Gen. Pam Bondi.

Challenges to Essayli’s position were brought in at least three criminal cases, with defense lawyers arguing that charges filed under his watch are invalid and should be dismissed. The federal public defender’s office in L.A. had asked the judge to disqualify Essayli from participating in and supervising criminal prosecutions.

Senior U.S. District Judge J. Michael Seabright disqualified Essayli as acting U.S. attorney last October, finding he was “not lawfully serving” in the top role. But Seabright — who was appointed to the bench by President George W. Bush — said the court had “no basis to preclude Essayli from performing the lawful duties” of first assistant U.S. attorney, which left the door open for him to remain in charge.

At a news conference after the ruling, Essayli said, “I think the judge has made clear, regardless of my title, I have the authority to run this office.”

Seabright denied a motion by the federal public defender’s office to reconsider his ruling. The office did not respond to a request for comment about where the case currently stands in light of the 9th Circuit ruling.

“I would expect the public defenders will reinvigorate their challenge to Essayli,” said Laurie Levenson, a Loyola Law School professor and former federal prosecutor. “This certainly helps the effort in challenging Essayli, but I don’t know where that effort is and what they plan to do.”

“It really raises the fundamental question: What’s the difference between a U.S. attorney and a first assistant attorney?” Levenson added. “They seem, under this administration, to do the same job.”

Carl Tobias, a University of Richmond law professor, said he isn’t sure what’s next, but noted that “the precedent is mounting, it seems to me, in ways that seem to reject the first assistant workaround.”

Pearce, the attorney who argued before the 9th Circuit, noted that judges in other parts of the country have nixed Trump administration maneuvers to keep de facto U.S. attorneys in power without Senate confirmation.

Last year in New Jersey, Trump advisor Alina Habba stepped down as acting U.S. attorney after the 3rd Circuit affirmed her disqualification from the position.

Bondi then installed a three-person “triumvirate” of Justice Department officials to jointly run the office. A federal judge later ruled the trio was unlawfully leading the office and chided the administration for trying to sidestep Senate confirmation. Earlier this year, Robert Frazer was named as the top federal prosecutor in the state, after an agreement between federal judges and the Justice Department.

“At its core this is really a question about circumvention,” Pearce said. “There is a long-settled legal framework for how to appoint the most powerful federal prosecutor in each district and it is not hard to follow it, and yet the government has insisted in a number of places that it can take these sort of steps to get around it.”