The federal public defender’s office in Los Angeles filed a motion Friday to disqualify acting U.S. Atty. Bill Essayli, arguing that President Trump’s pick to serve as the top federal prosecutor in Southern California is unlawfully occupying his post.
Essayli, a former Riverside County assemblyman, was appointed by U.S. Atty. Gen. Pam Bondi in April, and his term was set to expire in late July unless he was confirmed by the U.S. Senate or a panel of federal judges. 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 another nine months without any confirmation process.
The federal public defender’s office filed a motion seeking to dismiss an indictment against their client and to disqualify Essayli and attorneys working under him “from participating in criminal prosecutions in this district,” according to a motion filed Friday morning.
The defendant, Jaime Ramirez, was indicted on a charge of being a felon in possession of a firearm.
In a 63-page motion filed in Ramirez’s case, James Anglin Flynn and Aya A. Sarsour , deputy federal public defenders, argued that the Trump administration circumvented limitations that Congress has imposed on temporary service in offices like that of the U.S. attorney.
Essayli’s term was supposed to expire on July 29. At that point the White House had not formally nominated him before the U.S. Senate, and local federal judges had taken no action to confirm Essayli, or anyone else, to the position. At the eleventh hour, the White House named Essayli as “acting” U.S. Attorney, allowing him to hold the post for 210 more days without confirmation hearings.
“Mr. Essayli “was not lawfully acting as the United States Attorney in any capacity” on August 8 when the government obtained the indictment,” against Ramirez the deputy federal public defenders wrote in their motion. “And he has no such lawful authority today.”
The U.S. attorney’s office in L.A. did not immediately respond to a request for comment.
In their motions, Flynn and Havens pointed out that the Trump administration has used similar strategies to keep political allies in power in U.S. Attorney’s offices in Nevada, New Jersey, New Mexico and the Northern District of New York. But legal challenges are mounting. Last week, a federal judge ruled that Alina Habba has been illegally occupying her seat in New Jersey since early July, although that order was put on hold pending appeal.
Habba was nominated for the post earlier this year but did not receive Senate or judicial confirmation. Instead, local federal judges chose Desiree Leigh Grace, a veteran Republican prosecutor within the office, to replace Habba. Bondi responded by firing Grace and naming Habba acting U.S. Attorney, sparking confusion over who actually held the post and all but paralyzing the federal criminal court system in the Garden State.
On Tuesday, the federal public defender’s office in Nevada filed a motion to do one of two things: dismiss an indictment that acting U.S. Attorney Sigal Chattah brought against one of its clients, or disqualify the U.S. attorney’s office entirely. The 59-page motion specifically challenged Chattah, stating that she is not lawfully serving as acting U.S. attorney.
Echoing Judge Matthew W. Brann’s ruling on Habba, the Nevada public defenders argued that Chattah was not first assistant as federal law required when the U.S. attorney seat became vacant.
The motion also argues that Chattah was illegally kept in office past the 120 day limit and can’t exercise the powers of the office without Senate confirmation.
“The Court should dismiss the indictment; at a minimum, it should disqualify Ms. Chattah from this prosecution, as well as attorneys operating under her direction; and the judges of this district should exercise their authority to appoint a proper interim U.S. Attorney,” the Nevada motion read.
Last month, in the final days before Chattah’s interim appointment ended, more than 100 retired state and federal judges wrote Nevada’s chief federal district judge to urge him not to appoint her once her term expired. The group said Chattah’s history of “racially charged, violence-tinged, and inflammatory public statements” was disqualifying.
The letter called Chattah’s interim appointment “a troubling pattern by the Trump administration of bypassing the Senate’s constitutional role in confirming U.S. Attorneys.”
According to the letter, as of July, Trump had submitted formal nominations for only nine of his administration’s 37 interim appointees.
“If this pattern persists, by late fall, more than one-third of the 93 U.S. Attorneys will have evaded Senate review this year alone,” the letter read. “Yet, the constitutional role of the Senate is vital regarding the appointment of U.S. Attorneys.”
Each of Trump’s controversial picks has demonstrated fealty to the president. Chattah has long upheld Trump’s lie that he actually won the 2020 election. Habba — who once served as Trump’s personal attorney and has no prosecutorial experience — promised to turn New Jersey “red,” breaking with longstanding norms of federal prosecutors eschewing partisan politics. She’s also filed criminal charges against two Democratic lawmakers in the state over scuffles with immigration officers at a Newark detention facility.
Since taking office, Essayli has doggedly pursued Trump’s agenda, championing hard line immigration enforcement in Southern California, often aping the president’s language verbatim at news conferences. His tenure has sparked discord in the office, with dozens of prosecutors quitting in the face of his belligerent, scream-first management style.
A Times investigation last month found that his aggressive pursuit of charges against people protesting immigration enforcement in Southern California has led to weak cases being rejected again and again by grand juries. A number of others have been dismissed.
Even if Trump had formally nominated him to serve a full term as U.S. attorney, it is unlikely he would have ever appeared on the Senate floor. California Sens. Alex Padilla and Adam Schiff are both opposed to Essayli’s appointment and could have derailed any nomination by withholding what is known as their “blue slip,” or acknowledgment of support for a nominee.
The procedural blockades have drawn Trump’s ire, and the president has challenged Senate Judiciary Chair Chuck Grassley to do away with honoring the “blue slip” tradition. Grassley has held firm, but Trump has threatened litigation.
Legal experts called the White House’s move to keep Essayli in office unprecedented last month, and warned it could impact criminal cases.
“These laws have never been used, as far as I can see, to bypass the Senate confirmation process or the judicial one,” Laurie Levenson, a former federal prosecutor in L.A. who now serves as a professor at the Loyola Law School of Los Angeles, told The Times last month. “The most serious consequences are if you’re going to end up with indictments that are not valid because they weren’t signed by a lawful U.S. attorney.”