A federal judge heard arguments Tuesday to determine whether the Trump administration’s maneuver to appoint Bill Essairi as acting U.S. attorney in Los Angeles was inappropriate and, if so, what should be done about it.
At Tuesday’s hearing in downtown Los Angeles, Senior Judge J. Michael Seabright, who had flown in from Hawaii to hear the case, struggled with how to proceed after the defense team dismissed the charges against his three clients and sought to disqualify Essayri “from participating in criminal prosecutions in this district.”
Ezeiri, a former Riverside County councilman, was appointed as the region’s interim top federal prosecutor by U.S. Atty. General Pam Bondi in April.
His term was scheduled to expire in late July unless confirmed by the U.S. Senate or a panel of federal judges. However, the White House did not appoint him to the permanent role, instead opting to change his title to “actor” and extend his term for another nine months without any confirmation process.
Seabright was chosen from the Hawaii district after a federal judge in L.A. recused himself from the proceedings. He questioned the consequences of dismissing the complaint regarding Essayli’s title.
“If I did this for your client, wouldn’t I have to do the same for every defendant who was indicted while Mr. Esseri was acting under the name of Acting U.S. Attorney?” Seabright told the deputy federal public defender.
“I don’t think so,” James A. Flynn replied. “This is a time- and case-specific analysis, and the court need not go so far as to determine that dismissal is appropriate in every case.”
“Why not? You’re asking for a really tough remedy here,” Seabright said, before asking how many indictments Essayri had filed since he was appointed acting U.S. attorney in late July.
“Number 203, please.” Assistant U.S. Attorney. Alexander P. Robbins answered.
In a court filing ahead of Tuesday’s hearing, lawyers challenging Essayri said the government’s defense of his status is a playbook for circumventing the protections built by the Constitution and Congress against the endless and unaccountable handpicking of temporary employees. ”
During the nearly two-hour hearing, Flynn cited similar legal issues that have arisen elsewhere. Mr. A is illegally occupying the office of federal prosecutor in New Jersey, but that order is pending pending appeal. Last month, a federal judge stripped Nevada’s top federal prosecutor, Sigal Chata, from several cases, concluding that she was “not effectively serving as acting U.S. attorney.”
The judges ruling in the Nevada and New Jersey cases did not dismiss the charges against the defendants, but instead ordered those cases not to be placed under Hava or Chata supervision.
Flynn argued that other states’ remedies were “ineffective in deterring the conduct.”
“This court has had several more weeks to see the government’s response to the decision that their appointment was unlawful, and I don’t think the government has gotten that message,” Flynn said.
Mr. Flynn said another option would be to fire him without prejudice, which would mean the government could sue his client again. He called it a “lesser medicine” than a bias dismissal, “but it would be a stronger medicine than what is being proposed in New Jersey and Nevada.”
The hearing was acrimonious at times, with Seabright requesting that U.S. Assistant Atty. Robbins tells him when Essayri’s term ends. Robbins told the judge that he believed the government would end the case on February 24, after which the role of acting U.S. attorney would remain vacant.
Robbins noted that Esseri has also been named first assistant U.S. attorney, effectively allowing him to remain in charge of the office even though he loses the title of “acting”.
Bondi also appointed him as “special counsel” in July. “There are no new challenges to Mr. Esairi’s appointment as special prosecutor or his nomination as first assistant,” Robbins told the judge.
“The defensive challenge here, the interest they’re expressing, is that Bill Esseri can’t perform,” Robbins said. “But they don’t have a compelling strong reaction to Bill Esseri being legally in office and him being able to be the first aide…he can supervise other people in the office.”
Seabright asked both parties to explain by Thursday “what hat (Essayri) appears to be wearing now” and “whether it can be said that he is not legally appointed acting U.S. attorney…what hat he will continue to wear.”
“If I understand the government’s proposed relief correctly… it would be essentially no relief. The government would reappoint Mr. Esseri as acting U.S. attorney, and he would just be wearing the first assistant hat,” Flynn said.
A spokeswoman for the U.S. Attorney’s Office in Los Angeles did not respond to a request for comment.
When asked about the disqualification motion by a Times reporter last month, Essayri replied, “The president won the election.”
“The American people have given him the authority to run the executive branch, including the U.S. Attorney’s Office, and I look forward to carrying out his duties in accordance with the wishes of the President,” he said at a press conference.
Since taking office, Essayri has doggedly pursued President Trump’s policies, defending tough immigration enforcement in Southern California and often echoing the president’s words in press conferences. Dozens of prosecutors resigned during his term.
