Top federal prosecutor in L.A. faces challenge over ‘acting’ status

A federal judge heard arguments Tuesday to decide whether the Trump administration’s maneuvers to appoint Bill Essayli as acting U.S. attorney in Los Angeles were improper and, if so, what to do about it.

At a hearing Tuesday in downtown Los Angeles, Senior Judge J. Michael Seabright, who traveled from Hawaii for the case, wondered how defense attorneys could proceed after trying to dismiss indictments against three clients and bar Essayli from “participating in criminal prosecutions in this district.”

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

His term was scheduled to end in late July unless confirmed by the U.S. Senate or a panel of federal judges. But the White House never moved to appoint him to a permanent post; instead, he used an unprecedented legal maneuver, changing his title to “acting” and extending his term for another nine months without any confirmation process.

Seabright was elected from the District of Hawaii after Los Angeles federal judges recused themselves from the trial. He questioned the consequences of dismissing any accusations regarding Essayli’s title.

“If I did that for your client, Mr. Essayli, acting in his capacity as the acting U.S. attorney, I’ll have to do that for every defendant indicted, right?” Seabright told the assistant federal public defender.

“I don’t think you’ll do that,” James A. Flynn replied. “This is a time-specific, case-specific analysis, and the court need not go so far as to determine that dismissal would be appropriate in every case.”

“Why not? You’re really asking for a very draconian resolution here,” Seabright said, before questioning how many charges have been filed since Essayli was appointed acting U.S. attorney in late July.

“203, Your Honor,” Assistant U.S. Attorney. Alexander P. Robbins responded.

In a brief filed ahead of Tuesday’s hearing, attorneys presenting the challenge against Essayli characterized the government’s defense of Essayli’s status as a handbook for circumventing protections created by the Constitution and Congress against unrestricted and unaccountable selection of temporary officials.”

During the nearly two-hour hearing, Flynn touched on similar legal challenges elsewhere. A. federal judge Alina Habba in August He is illegally occupying the U.S. attorney’s office in New Jersey, but that order has been stayed pending appeal. Last month, a federal judge disqualified Nevada’s lead federal prosecutor, Sigal Chattah, from several cases, finding that she was “not validly acting as acting U.S. attorney.”

Judges deciding the Nevada and New Jersey cases did not dismiss the charges against the defendants, but instead ruled that those cases would not be supervised by Habba or Chattah.

Flynn argued that remedies in other states “have not been effective in deterring the behavior.”

“The court has the advantage of the additional week and has seen the government’s response to its determination that their appointments were illegal, and I submit that the government did not get the message,” Flynn said.

Another option could be dismissal without prejudice, which would mean the government could reopen the case against his clients, Flynn said. He called it “weaker medicine” than dismissal with prejudice, “but it would be stronger medicine than what’s being offered in New Jersey and Nevada.”

The hearing became tense at times, with Seabright requesting Assistant U.S. Attorney. Robbins tells him when Essayli’s term ends. Robbins told the judge that the government believes this process will end on Feb. 24, after which the acting U.S. attorney position will remain vacant.

Robbins noted that Essayli was also appointed first assistant U.S. attorney general, essentially allowing him to remain in charge of the office if he loses his “acting” title.

Bondi also appointed him as “special counsel” in July. Robbins told the judge there was “no developed objection to Mr. Essayli’s appointment as special counsel or his appointment as first assistant.”

“The defense issue here and the stated interest is Bill Essayli’s failure to act,” Robbins said. “But they don’t have a convincing or strong answer that Bill Essayli is legally in the office and can be the first assistant … to supervise other people in the office.”

Seabright asked both sides to notify him by Thursday “whichever hat you believe in.” [Essayli’s] currently wearing” and “what hats does he continue to wear if I told him he is not legally employed as a U.S. attorney?”

“If I understand correctly the remedy that the government is proposing … there would actually be no remedy at all, because they would recreate Mr. Essayli as the acting attorney general of the United States, he would just be wearing the 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.

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

“The American people have given him the authority to lead the executive branch, including the office of U.S. attorney, and I look forward to serving to the president’s satisfaction,” he said at a news conference.

Essayli has doggedly pursued Trump’s agenda since taking office; He advocated for strict immigration enforcement in Southern California and often used the president’s language verbatim at news conferences. His tenure led to discord in the office, with dozens of prosecutors resigning.