Judges pass on chance to appoint a U.S. attorney for Western Virginia (copy)
Western Virginia’s federal judges are steering clear of an opportunity to appoint a U.S. attorney, a process that elsewhere in the country has led to politically charged legal battles with President Donald Trump.
On Wednesday, the U.S. District Court judges for the Western District of Virginia met privately to discuss the possibility of either continuing the term of acting U.S. Attorney Robert Tracci or appointing someone else to the position.
The active and senior judges “unanimously agreed not to exercise their authority” to make an appointment, they said in a notice posted Friday afternoon to the court’s website.
With their action, or inaction, the judges seem to be avoiding a confrontation with the Trump administration, which has pushed to install loyalists to serve as federal prosecutors and frequently clashed with the judiciary, said Carl Tobias, a University of Richmond law professor.
In other federal districts, the U.S. Justice Department has quickly fired prosecutors appointed by judges it sees as resisting the administration’s agenda. And the judges in other cases have ruled that Trump’s appointments were unlawful.
“So that’s the lay of the land,” Tobias said. “That’s the sad state of where we are.”
Tracci’s path to office
Under federal law, it’s unusual for judges to have the opportunity to appoint U.S. attorneys, who traditionally have been nominated by the president and confirmed by the Senate before taking office.
But Tracci, like many of his counterparts, came into power under unusual circumstances.
Shortly after Trump took office last year, two fellow Republicans, Tracci and Todd Gilbert, were recommended for the job by Virginia’s U.S. senators. Trump chose to nominate Gilbert, a former state lawmaker who was sworn in as interim U.S. attorney in July.
Before he could be considered by the Senate, however, Gilbert had a falling out with the Trump administration and suddenly resigned on Aug. 20, without publicly stating a reason.
By then, the Justice Department — reportedly unhappy with Gilbert’s decision to keep a holdover from the administration of former President Joe Biden as his first assistant U.S. attorney — had appointed Tracci to serve as second-in-command of the Roanoke-based office.
As set forth in the Federal Vacancies Reform Act, Tracci replaced Gilbert and became acting U.S. Attorney for 210 days — a term that expires this Wednesday, March 18.
Under the conventional process, the president by now would have nominated a candidate, either Tracci or someone else, who would have been vetted by the Senate and voted into office.
That has not happened, Tobias said.
“It's just mysterious,” the law professor said of the administration not nominating Tracci, who last year appeared to be their choice to replace Gilbert. “I don't understand it. I'm mystified.”
The Justice Department has previously declined to comment on Tracci’s appointment as first assistant U.S. attorney and Gilbert’s subsequent resignation.
A spokesman for Tracci’s office also declined to comment Friday.
What happens next?
When the 210-day term of an acting U.S. attorney expires, “the court may, but is not required to, appoint a United States Attorney to serve until the vacancy is filled, whether it be Mr. Tracci or another person,” the judges for the Western District of Virginia wrote in their notice.
“The district judges prefer to await a nomination by the President, subject to the advice and consent of the Senate, for this Executive Branch position,” the notice read.
It’s unclear what will happen when Tracci’s term expires Wednesday. Tobias said the administration may find a way to keep him in office, possibly by naming him as an interim U.S. attorney or as a special assistant to Attorney General Pam Bondi.
Similar moves — which Tobias said have been taken by Trump to avoid political battles in the Senate over his often-controversial nominees — have not gone well.
Perhaps the most notable case was in the Eastern District of Virginia, which is often the venue for high-profile national cases due to its proximity to Washington, D.C.
In September, Lindsey Halligan was appointed by Bondi under extraordinary public pressure from Trump. The president was angry that then-U.S. Attorney Erik Siebert was reluctant to prosecute two of the president’s foes, former FBI director James Comey and New York Attorney General Letitia James.
Siebert stepped down and Halligan was appointed to replace him. Within weeks, she persuaded a grand jury to indict Comey on allegations that he'd lied to Congress, and James on alleged fraud in the mortgage she obtained to buy a house in Norfolk.
District Judge Cameron Currie dismissed both cases, ruling that without confirmation by the Senate, Halligan was unlawfully appointed. The Justice Department is appealing the ruling.
Similar disputes have occurred in California, Nevada, New Jersey and New York.
And on Tuesday, federal judges in Milwaukee announced that they have decided not to extend Brad Schimel’s appointment as interim U.S. attorney in Wisconsin, a term that was set to expire March 17.
Tobias predicted that if the Trump administration is still happy with Tracci — a former Albermarle County commonwealth’s attorney and assistant Virginia attorney general — they will find a way to keep him in office past Wednesday.
“They will do whatever they want to do,” he said. “And if someone sues them over it, they will fight that, too.”
Some information in this story came from The Associated Press.
Laurence Hammack (540) 981-3239
