119-Day Prosecutor

Yes, Jeanine Pirro is a terrible appointment. But the problem is that Trump is appointing anyone at all.

Let’s get this out of the way first: as far as I, a legal layperson, can tell, Jeanine Pirro is reasonably qualified to be a U.S. Attorney. Or was, anyway; She was a thrice-elected District Attorney, and previously served as an appointed county judge. She was editor of the law review at Albany; she’s no random dummy off the street. There was a time, 20-odd years ago, when I think you could say with a straight face that she was not an unreasonable choice for a U.S. Attorney posting. A little too politically ambitious and self-aggrandizing, but those have not been disqualifying characteristics in other U.S. Attorneys, believe you me.

By the late aughts, after some bumps in her political career—and the conviction of her husband—Pirro transformed into an ambitious and self-aggrandizing political personality. It didn’t take long for her to shed the confines of legal commentary and become a brash, highly opinionated darling of the right-wing marketplace. Her resume credentials, and familiarity from mainstream network appearances, lent her some sort of cachet to her as she spouting off of the same half-thought-out party line nonsense that others in that market could be counted on.

Core right-wingers—the ones who I used to follow in various social media Groups and chat rooms—adored her. She was the most common dream nominee for Supreme Court Justice among that crowd. Loved her.

So did Donald Trump, who knows her from back in their New York days (and as President, pardoned her now ex-husband.). Pirro, like many others in that marketplace, transitioned from general conservative scold to full-fledged Trump MAGA watercarrier; Pirro more than most. Among other things, she ran heavy interference for her on the Mueller investigation, and dove headlong into 2020 election fraud dissembling.

Trump, as you may know, says he is making Pirro acting Attorney General for the D.C. circuit. She will presumably serve in that for roughly 119 days, in a sabbatical of sorts from her current role at the Fox News Channel. Since 120 is the maximum she can hold the post without Senate confirmation, which seems like an unlikely option. In his Truth Social post announcing his interim appointment of Pirro, Trump made no mention of nominating her for the job itself.

And there’s the rub.

Her appointment will be howled at, because of who Pirro is: the insane things she has said, her unserious life of the past two decades, and the SNL caricature of her as a wine-guzzling drunk.

But, as with so much in this presidency, the surface outrageousness can detract from the more fundamental one.

Trump, as I understand it, is appointing Pirro in a legally dubious attempt to not go to the Senate at all for their advice and consent on this particular opening. As is Trump’s usual strategy, in business, personal life, and the presidency, he’s plowing forward and letting others sort out whether it was legal for him to do so.

You see, Trump actually nominated Ed Martin, a lesser-known Trump sycophant, while making him Acting U.S. Attorney in D.C. With his 120 days running low, it became clear that he would not win Senate confirmation. Trump is subbing in Pirro like a wrestling tag team move.

But that’s not really how it works. Or at least, it never has. I’m not qualified to say, but the quick reaction from those who are qualified seems to be along the lines of “um, no.” The relevant law says that if the 120 days run out, the district court with the vacancy picks someone. (In the District of Columbia that would be Chief Judge James Boasberg, who has been warring with the Trump administration, most notably on the El Salvador renditions. The thought of Boasberg naming the top D.C. federal prosecutor is so mouth-watering some liberals are practically drooling through their social media avatars.)

The law—28 pp546 if you care to look for yourself—is succinct. Again, I’m not one of them fancy law-reading people, so I don’t know. I suppose one could argue—and I’m sure the administration will—that the law only deals with what happens when “am appointment expires,” and by yanking Martin away before the 120^th day it didn’t technically expire. Just an Ed Martin-shaped vacancy in the U.S. Attorney’s office. Ooh look, a vacancy for the President to temporarily fill.

Well, I suppose the courts can sort that out. Of course, if the courts say that okay, Mr. President, you can re-start with a second Acting Attorney when your first one proves unconfirmable, then Trump has carte blanche to send Pirro back to Fox News after 119 days, and send somebody else to do the job for a few months. And then send somebody else 119 days later. He doesn’t need to ever seek advice and consent from the Senate.

Republican Senators did not immediately seem distraught by this possibility. I have seen just three of them make public statements about the move, all lauding Pirro: Thom Tillis (“great choice!”), Lindsay Graham (“Grand slam, home run, hat trick pick”) and Ted Cruz (“Terrific appointment”). Tillis, a member of the Senate Judiciary Committee, is particularly noteworthy, as his declaration of non-support for Martin was central to his failure to get confirmed. Again, Trump has given no indication that he intends to actually nominate Pirro for the job long-term, so Tillis need not say that he would actually vote in favor of her nomination. He can just cheerlead as though merely a sideline spectator. Convenient, if not exactly bold.

So, usurping the Senate’s role is one possible outcome. The other is not much prettier. If the courts eventually rule that no, the President cannot just create a new vacancy every 119 days and restart the clock with a new interim appointment, then Pirro will have been unlawfully appointed, and all actions of the office under her tenure could be nullified—undoubtedly anybody indicted during that period will make that argument.

So, sure, the idea of putting Jeanine Pirro in the top D.C. federal prosector’s job should make you scream into the void because of who Pirro is—I suspect that’s part of the strategy behind the choice. Just don’t let that scream drown out your objections to Trump appointing anyone at all.