Top federal prosecutor in L.A. faces challenge over ‘acting’ status

A federal judge heard arguments Tuesday to decide whether maneuvers used by the Trump administration to install Bill Essayli as acting United States attorney in Los Angeles are improper — and, if so, what should be done about it.

During a Tuesday hearing in downtown L.A., Senior Judge J. Michael Seabright — who flew in from Hawaii for the proceeding — wondered how to proceed after defense attorneys sought to dismiss indictments against three clients and to disqualify Essayli “from participating in criminal prosecutions in this district.”

Essayli, a former Riverside County assemblyman, was appointed as the region’s interim top federal prosecutor by U.S. Atty. Gen. Pam Bondi in April.

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 for an additional nine months without any confirmation process.

Seabright was selected from the District of Hawaii after L.A.’s federal judges recused themselves from the proceedings. He questioned the consequences of dismissing any charges over Essayli’s title.

“If I did this for your client, I’ll have to do it for every single defendant who was indicted when Mr. Essayli was acting under the rubric of acting U.S. attorney, correct?” Seabright said to a deputy federal public defender.

“I don’t think you will,” replied James A. Flynn. “This is a time-specific, case-specific analysis and the court doesn’t need to go so far as to decide that a dismissal would be appropriate in all cases.”

“Why not? You’re asking for a really draconian remedy here,” Seabright said, before questioning how many indictments had been made since Essayli was designated acting U.S. attorney at the end of July.

“203, your honor,” Assistant U.S. Atty. Alexander P. Robbins responded.

In a court filing ahead of the hearing Tuesday, lawyers bringing the challenge against Essayli called the government’s defense of his status a handbook for circumventing the protections that the Constitution and Congress built against the limitless, unaccountable handpicking of temporary officials.”

During the nearly two-hour hearing, Flynn cited similar legal challenges that have played out elsewhere. A federal judge ruled in August that Alina Habba has been illegally occupying the U.S. attorney post in New Jersey, although that order was put on hold pending appeal. Last month, a federal judge disqualified Nevada’s top federal prosecutor, Sigal Chattah, from several cases, concluding she “is not validly serving as acting U.S. attorney.”

The judges who ruled on the Nevada and New Jersey cases did not dismiss the charges against defendants, instead ordering that those cases not be supervised by Habba or Chattah.

Flynn argued that the remedies in other states “have not been effective to deter the conduct.”

“This court has the benefit of additional weeks and has seen the government’s response to that determination that their appointments were illegal and I submit the government hasn’t gotten the message,” Flynn said.

Flynn said another option could be a dismissal without prejudice, which means the government could bring the case against their clients again. He called it a “weaker medicine” than dismissal with prejudice, “but would be a stronger one than offered in New Jersey and Nevada.”

The hearing grew testy at times, with Seabright demanding that Assistant U.S. Atty. Robbins tell him when Essayli’s term will end. Robbins told the judge the government believes it will end on Feb. 24 and that afterward the role of acting U.S. attorney will remain vacant.

Robbins noted that Essayli has also been designated as first assistant U.S. attorney, essentially allowing him to remain in charge of the office if he loses the “acting” title.

Bondi in July also appointed him as a “special attorney.” Robbins told the judge that “there’s no developed challenge to Mr. Essayli’s appointment as a special attorney or his designation as a first assistant.”

“The defense challenge here, the stated interest that they have, is Bill Essayli cannot be acting,” Robbins said. “But they don’t have a compelling or strong response to Bill Essayli is legitimately in the office and he can be the first assistant … he can supervise other people in the office.”

Seabright asked both sides to brief him by Thursday on “whatever hats you believe [Essayli’s] wearing now” and “whether I were to say he wasn’t legitimately made acting U.S. attorney … what hats does he continue to wear.”

“If I understand the government’s proposed remedy correctly … it would essentially be no remedy at all, because they would be re-creating Mr. Essayli as the acting United States attorney, he’d just be wearing a first assistant hat,” Flynn said.

A spokesperson for the U.S. attorney’s office in L.A. did not immediately respond to a request for comment.

When asked by a Times reporter last month about the motion to disqualify him, Essayli said “the president won the election.”

“The American people provided him a mandate to run the executive branch, including the U.S. attorney’s office and I look forward to serving at the pleasure of the president,” he said during a news conference.

Since taking office, Essayli has doggedly pursued Trump’s agenda, championing hard-line immigration enforcement in Southern California, often using the president’s language verbatim at news conferences. His tenure has sparked discord in the office, with dozens of prosecutors quitting.