Judge rules Trump’s top federal prosecutor in L.A. is ‘unlawfully serving’

A federal judge Tuesday ruled that Acting U.S. Atty. Bill Essayli is “not lawfully serving” in his position, but declined to dismiss criminal indictments that were challenged by defense attorneys over his status.

Senior U.S. District Judge J. Michael Seabright of Hawaii was brought in to oversee motions seeking to disqualify Essayli after federal judges in Los Angeles recused themselves. In his ruling, Seabright said Essayli “unlawfully assumed the role of Acting United States Attorney” in July but can nevertheless remain in charge under a different title.

Seabright said Essayli “remains the First Assistant United States Attorney” and can “perform the functions and duties of that office” even if he is forced to shed his “acting” designation.

Essayli, a former Riverside County assemblyman, was appointed as the region’s interim top federal prosecutor by U.S. Atty. Gen. Pam Bondi in April.

The top prosecutors in charge of U.S. attorney’s offices are supposed to be confirmed by the U.S. Senate or a panel of federal judges, but the Trump administration has circumvented the normal process in order to allow Essayli and others to remain on the job without ever facing a vote.

Essayli’s temporary appointment was set to expire in late July, but the White House never moved to nominate him to a permanent role, instead opting to use an unprecedented legal maneuver to shift his title to “acting,” extending his term for an additional nine months.

Challenges to Essayli’s appointment were brought in at least three criminal cases, with defense lawyers arguing that charges brought under his watch are invalid. The federal public defender’s office in Los Angeles asked the judge to disqualify Essayli from participating in and supervising criminal prosecutions in the district.

In his decision, Seabright said he shared the concerns of federal public defenders that a ruling not to dismiss indictments and allow Essayli to retain his authority would “be little remedy at all.”

But Seabright said there had been no showing that Essayli’s supervision in the acting role had “improperly interfered with the grand jury process or led to any other specific actions that prejudiced Defendants.”

He said that although Essayli could not continue to be the acting U.S. attorney, “including prosecuting or supervising these cases in that role,” the court “has no basis to preclude Essayli from performing the lawful duties” of first assistant U.S. attorney.

“And in that capacity, he could supervise these prosecutions,” Seabright wrote.

The Department of Justice declined to comment on any of the rulings, citing ongoing litigation.

Seabright’s ruling comes amid similar challenges across the country to the Trump administration’s tactics for installing loyalists who wield the power to bring criminal charges and sue on the government’s behalf.

A federal judge in August determined Alina Habba has been illegally occupying the U.S. attorney post in New Jersey, although that order was put on hold pending appeal. Last month, a federal judge disqualified Nevada’s top federal prosecutor, Sigal Chattah, from several cases, concluding she “is not validly serving as acting U.S. attorney.” Chattah’s disqualification is also paused while the Department of Justice appeals the decision.

James Comey, the former FBI director charged with lying to Congress, cited the Nevada and New Jersey cases in a recent filing, and is now challenging the legality of Trump’s appointment of Lindsey Halligan as U.S. attorney for the Eastern District of Virginia. Halligan was appointed after his predecessor, also a Trump appointee, refused to seek charges against Comey.

Seabright referenced the similar cases elsewhere, but said that when Essayli assumed the role “no court had disapproved of the practice.” Neither of the decisions in Nevada or New Jersey, he said, “is binding on this district court.”

“No other court — and significantly, no circuit court — has yet ruled,” he wrote.

Since taking office, Essayli has doggedly pursued President Trump’s agenda, championing hard-line immigration enforcement in Southern California, often using the president’s language verbatim at news conferences. Essayli’s tenure has sparked discord in the office, with dozens of career DOJ prosecutors quitting.

Assistant U.S. Atty. Alexander P. Robbins previously told the judge the government believes Essayli’s term will end on Feb. 24 and that afterward the role of acting U.S. attorney will remain vacant.

Robbins argued in a court filing that the court shouldn’t order Essayli “to remove the prosecutorial and supervisory hats that many others in this Office wear, sowing chaos and confusion into the internal workings of the U.S. Attorney’s Office for the largest district in the country.”

When asked by a Times reporter last month about the motion to disqualify him, Essayli said “the president won the election.”

“The American people provided him a mandate to run the executive branch, including the U.S. attorney’s office and I look forward to serving at the pleasure of the president,” he said during a news conference.

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This story originally appeared in Los Angeles Times.