The loophole that keeps a Trump loyalist as L.A.’s federal prosecutor
President Trump has appointed hand-picked loyalists from across the country as top federal prosecutors. Many were expelled after legal battles because they lacked Senate confirmation to serve as U.S. attorneys.
But in Los Angeles, Bill Essayli wields attorney general authority with a lesser title: “first assistant.”
Essayli marked his first year in office this week. He survived the kind of challenges that sank Trump’s elections in other states thanks to a combination of legal gamesmanship by the U.S. Department of Justice and inaction by judges in the Central District of California.
Essayli used his position to act as one of Trump’s toughest legal foot soldiers. He has filed criminal charges against protesters, activists, and immigrants, while dropping lawsuits against administration allies and supporting lawsuits over transgender and environmental policies in California.
After Trump fired the US attorney on Thursday. It’s unclear how his replacement, Gen. Pam Bondi, will address ongoing battles over the legality of Trump appointees. Essayli is popular with senior administration officials and received a congratulatory message about X from Vice President J.D. Vance earlier this week as fraud charges were filed.
The 40-year-old conservative former State Assembly member from Essayli, Riverside County, was sworn in as interim U.S. attorney last April. When he reached the 120-day limit on that assignment, Bondi appointed him “special counsel” and “first assistant.” A federal judge later disqualified Essayli from serving as the acting U.S. attorney, finding that he was “not lawfully serving” in the top job. However, the judge said he did not have the authority to revoke Essayli’s appointment as first deputy. Having no one above him in the office leaves Essayli as the de facto U.S. attorney.
In other jurisdictions, members of the federal bench have exercised their authority to appoint an interim U.S. attorney. Chief U.S. District Judge Dolly M. Gee’s chambers did not respond to a request for comment on why similar action was not taken in Los Angeles
A court spokesman declined to comment. Essayli did not respond to a request for comment. The White House referred questions to the Department of Justice.
A Justice Department spokesman issued a statement praising Essayli for prosecuting “drug cartels and transnational criminal organizations, sex traffickers, violent street gangs, leftist insurgents and domestic terrorists, fraudsters and child predators.”
“It is a disservice to our prosecutors and the American people for judges to prevent the President and Attorney General from appointing qualified and capable prosecutors who will aggressively enforce our laws and make America safe again,” a Justice Department spokesman said.
Gee’s failure to act, an appointee of President Obama, surprised some legal observers, especially given the swift action of judges in other districts. This also frustrated some former federal prosecutors who fled the office because of Essayli’s chaotic tenure.
A former assistant U.S. attorney, who left the office under Essayli and asked to remain anonymous to discuss the incumbent judges who would likely preside over future cases in the district, accused Gee and others of “shirking their responsibilities” by not appointing someone to the vacant U.S. attorney post.
Another former Central District prosecutor, who left the office before Essayli’s appointment, said Gee was being practical and taking a “protective” stance to “keep the court away from anger and accusations from the White House.”
“It would be unfair to say that the court has abdicated its authority,” said the former prosecutor, who requested anonymity to speak candidly about the district judges.
Under longstanding Senate tradition, individual senators can block a U.S. attorney nominee in their state by withholding the “blue slip” that clears a nominee’s path to a confirmation hearing.
Trump has attempted to bypass the Senate confirmation process to appoint top federal prosecutors in multiple states, including New Jersey and Virginia, where two of the president’s personal attorneys have been appointed U.S. attorneys; these states immediately moved to zealously advance the president’s agenda and, in some cases, prosecute his opponents.
In Virginia, Trump replaced the US attorney. Erik Siebert, a candidate under consideration by the Senate, with Lindsey Halligan, one of his former personal attorneys. Siebert refused to sue some of Trump’s political enemies and resigned. In his first criminal case, Halligan moved quickly to indict former FBI Director James B. Comey. The indictment was later dismissed and Halligan’s appointment was deemed illegal.
When judges in the Northern District of New York moved to remove the president’s former campaign lawyer, who assumed the same “first assistant” title as Essayli, Justice Department officials promptly fired his replacement.
UC Berkeley Law School Dean Erwin Chemerinsky said Trump’s attempts to bypass normal confirmation processes are unconstitutional.
“This is very troubling because it violates the constitutional procedure of the president nominating and the Senate confirming. “This is very important for checks and balances,” he said. “This allows the president to appoint whoever he wants.”
Even though Essayli has more law enforcement experience than many prosecutors Trump has chosen, he still struggles to score victories in the courtroom. Prosecutors lost nearly all of their cases against anti-Trump protesters and abandoned others after grand juries refused to return indictments.
Former federal prosecutor and veteran defense attorney Meghan Blanco suggested Gee’s inaction against Essayli may have been a clever act of resistance. Blanco said the justices let it fall on the attorney general’s face rather than pick a fight with the White House.
“If you’re a judge and you’re not happy with what the DOJ is doing and the shenanigans they’re pulling… you allow the Essayli appointment to happen,” Blanco said. “No one has ever seen a U.S. attorney’s office lose the way this office is losing right now.”
Sen. Adam Schiff (D-Calif.) told The Times this week that he was working with Sen. Cory Booker (D-N.J.) to draft legislation to appoint U.S. attorneys and clarify procedures needed to prevent Trump and future presidents from bypassing the Senate.
The legislation, which Schiff did not explain in detail, will face an uphill battle even if Democrats retake the Senate in the upcoming midterm elections. But the California senator said he was determined to challenge Trump’s maneuvers.
Schiff said Essayli “cannot be verified for one reason: He lacks the common sense, temperament and integrity required of a U.S. attorney.”
Loyola Law School professor and former federal prosecutor Laurie Levenson said local federal judges may believe “it would be more destructive to try to hire someone when the administration is going to fire them.”
But he said their inaction effectively confirmed that Essayli was the US attorney and highlighted a “real weakness in the system” that required regulatory action.
“As a result, you have an administration that does not want to follow the rules,” he said. “There needs to be some political will for Congress to do its job.”
