Biden move to replace U.S. attorneys looms

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Josh Gerstein
·3 min read
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The Biden administration is preparing to remove nearly all the remaining federal prosecutors former President Donald Trump appointed across the country, while making accommodations to allow a couple handling highly sensitive investigations to continue with their work, a senior Justice Department official said Monday night.

U.S. Attorney for Delaware David Weiss, a Trump appointee who is overseeing a probe into the finances of President Joe Biden's son Hunter Biden, has been asked to "holdover" in his current post despite the broader personnel overhaul, said the official.

In addition, U.S. Attorney for Connecticut John Durham — who is conducting a special counsel investigation into the origins of the Trump-Russia probe — has been asked to continue as special counsel while vacating his U.S. attorney slot, said the senior official, who asked not to be identified.

Acting Attorney General Monty Wilkinson is expected to hold a conference call Tuesday with U.S. attorneys to inform nearly all those holding presidential appointments that they are being asked to resign, the official said, confirming a CNN report about the plans.

The prosecutors are expected to be given weeks rather than days to wind up their work, a person familiar with the plan said. Many Trump-appointed prosecutors resigned prior to the inauguration.

By seeking resignations on that timeline, the Biden administration is all but guaranteeing that nearly all U.S. attorneys' offices will move to oversight by acting officials for a time until nominees are put forward by the White House and confirmed.

Traditionally, senators enjoy great sway over the selection of U.S. attorney nominees, as well as veto power through the Senate Judiciary Committee's blue-slip process.

The U.S. attorney jobs — 93 in all — are considered plum posts for up-and-coming lawyers, including those with political ambitions.

The process of replacing the chief prosecutors, which happens with every change of party in the White House, often triggers charges that it was too abrupt and counter-charges that the administration is not moving swiftly enough.

The Biden administration's move, coming before a new attorney general is even in place, is occurring sooner than the similar action four years ago, but the timeline for the prosecutors to depart seems more lax. In March 2017, Attorney General Jeff Sessions asked 46 U.S. attorneys to step down immediately. However, a few were allowed to remain for a time because they had spent years as line prosecutors in the department and were nearing retirement age.

Wilkinson's request is expected to apply to 56 prosecutors. The remainder are already career prosecutors serving on an acting basis or interim U.S. attorneys appointed by federal judges.

The removal of U.S. attorneys amid a president's term has sometimes produced political fireworks. The midterm dismissal of eight chief federal prosecutors in December 2006 caused a firestorm that ultimately led to the resignation of Attorney General Alberto Gonzales from the Bush administration.

Last June, an attempt by Attorney General William Barr to engineer the departure of Geoffrey Berman, the acting U.S. attorney in Manhattan, was met with unusual resistance from Berman and prompted an outcry from Democrats, the legal community, and prosecutors in Berman's office.

Barr had planned to replace Berman with the Trump-appointed U.S. Attorney for New Jersey, Craig Carpenito. Ultimately, Barr backed down from that part of the plan. Berman agreed to exit, but was replaced by the top career prosecutor in the office, Audrey Strauss.