A federal judge heard arguments Tuesday to decide whether the Trump administration’s appointment of Bill Essaly as acting U.S. attorney in Los Angeles was inappropriate and, if so, what steps should be taken.
At Tuesday’s hearing in downtown Los Angeles, Senior Judge J. Michael Seabright, who flew in from Hawaii to attend the proceedings, wondered how to proceed after defense attorneys sought to dismiss the indictments against the three clients and disqualify Essali from “participating in the district’s criminal proceedings.”
Essaly, a former Riverside County councilman, was appointed by the U.S. attorney to serve as the region’s interim top federal prosecutor. General Pam Bundy April.
His term is set to expire in late July unless confirmed by the U.S. Senate or a panel of federal judges. But the White House never nominated him for a permanent position, choosing instead to use an unprecedented legal maneuver to change his title to “acting,” extending his term for another nine months without any confirmation process.
Seabright was selected by the District of Hawaii after a federal judge in Los Angeles recused himself from the lawsuit. He questioned the consequences of dismissing any charges against Essali’s title.
“If I do that for your client, then I have to do that for every defendant who is indicted when Mr. Essally is acting as acting U.S. attorney, right?” Seabright told a deputy federal public defender.
“I don’t think you would,” James A. Flynn replied. “This is a time-specific, case-specific analysis, and the court is not required to make a decision to this extent that dismissal applies to all cases.”
“Why not? You’re asking for very serious remedies here,” Seabright said, before asking how many indictments have been filed since Essally was named acting U.S. attorney in late July.
“203, Your Honor,” Assistant United States Attorney. Alexander P. Robbins responded.
In a court filing ahead of Tuesday’s hearing, attorneys challenging Essally called the administration’s defense of his status a playbook designed to circumvent constitutional and congressional protections against the unlimited, unaccountable selection of interim officials.
During the nearly two-hour hearing, Flynn cited similar legal challenges that have arisen elsewhere. A federal judge ruled in August that Alina Haba illegally occupied the U.S. attorney’s seat in New Jersey, but the order was stayed pending appeal. Last month, a federal judge disqualified Sigal Chattah, Nevada’s top federal prosecutor, from multiple cases, concluding that she “was not effectively serving as acting U.S. attorney.”
Rather than dismissing the charges against the defendants, judges in the Nevada and New Jersey cases ordered the cases not to be overseen by Haba or Chatta.
Flynn argued that other state remedies “have not been effective in deterring this conduct.”
“The courts have had a few extra weeks and have seen the administration’s response to the decision that their appointments were unlawful, and I don’t think the administration has gotten the message yet,” Flynn said.
Flynn said another option could be a dismissal without prejudice, which would mean the government could file suit against their client again. He called it “a weaker medicine” than biased firings, “but more effective than what New Jersey and Nevada are offering.”
The hearing became heated at times, with Seabright asking for an assistant U.S. attorney. Robbins told him when Essaly’s term would end. Robbins told the judge that the government believes the lawsuit will be concluded on Feb. 24, after which the acting U.S. attorney position will remain vacant.
Robbins noted that Essaly was also designated as first assistant U.S. attorney, essentially allowing him to remain in charge of the office after losing his “acting” title.
Bondi also appointed him a “special counsel” in July. “There is no challenge to Mr. Essaly’s appointment as special counsel or his designation as first assistant,” Robbins told the judge.
“The defensive challenge here, the benefit they claim, is that Bill Essaly can’t make a move,” Robbins said. “But they didn’t have a convincing or strong reaction to the fact that Bill Essayli was legally in the office and that he could serve as first assistant … and that he could oversee other people in the office.”
Seabright gave both sides until Thursday to brief him on ‘whatever you believe’ [Essayli’s] Now wearing” and “Would I say he is not legitimately serving as acting U.S. attorney… what hat he continues to wear. ”
“If I understand correctly the remedy that the government is proposing … it’s basically not a remedy at all, because they’re going to reappoint Mr. Essally as acting U.S. attorney, who’s just wearing a first assistant hat,” Flynn said.
A spokesman for the U.S. Attorney’s Office in Los Angeles did not immediately respond to a request for comment.
Last month, when asked by a Times reporter about the motion to disqualify him, Essaly said “the president won the election.”
“The American people have given him a mandate to run the executive branch, including the U.S. Attorney’s Office, and I look forward to serving the president,” he told a news conference.
Since taking office, Essaly has relentlessly pursued Trump’s agenda, supporting tough immigration enforcement in Southern California and often using the president’s language verbatim in press conferences. His tenure sparked discord in the office and dozens of prosecutors resigned.
