New Mexico federal judges recused amid challenges to US Attorney appointment

With the recent filing of additional defense challenges to the appointment of Ryan Ellison as acting U.S. Attorney for New Mexico, the state’s chief federal judge has recused the entire federal judiciary here from hearing such motions.

The question of whether the Trump administration violated federal law to extend Ellison’s appointment beyond 120 days is now before Senior U.S. District Judge David Nuffer of Salt Lake City. Nuffer, an Obama appointee, has asked the government to respond by Oct. 14.

Other challenges to “acting” U.S. Attorney appointments in Southern California and Nevada are also pending. An earlier case in New Jersey is being appealed to the 3rd Circuit Court of Appeals after a Pennsylvania judge ruled that a former personal attorney to President Trump had been unlawfully serving as the top federal prosecutor for the District of New Jersey since July.

Nuffer on Wednesday stated in a filing that he also wanted defense and government attorneys in the Ellison cases to file briefs as to whether action on the disqualification motions should wait until the appeals court decides the New Jersey case.

Defense attorneys in New Mexico have asked that Ellison and those he supervises be disqualified from overseeing criminal prosecutions brought after his temporary appointment expired in mid-August. As of Friday, a total of eight motions seeking disqualification and dismissal of the defendants’ criminal charges have been filed.

U.S. Attorney General Pam Bondi appointed Ellison as an “acting” U.S. Attorney on Aug. 15, adding another 210 days to his term. Typically, the president nominates U.S. Attorney candidates, who are then confirmed by Congress. But Trump hasn’t formally nominated Ellison.

Chief U.S. District Judge Kenneth Gonzales on Sept. 19 ordered federal judges to recuse themselves from hearing all such disqualification motions, including future motions. There was no explanation given.

The judges in August, upon the expiration of Ellison’s temporary term, could have appointed their own U.S. Attorney by law but declined to do so.

Ellison, an Alamogordo native who started as an assistant U.S. attorney in 2018 and worked on high-profile racketeering cases against the Syndicato de Nuevo Mexico prison gang, contends he is lawfully serving as U.S. Attorney and has submitted vetting documents to New Mexico’s U.S. senators.

With the disqualification issue undecided, it’s unclear how the continuing prosecutions in the eight cases will be affected. At least one defendant seeking to disqualify Ellison wants his Oct. 14 trial delayed until Nuffer rules.

Defense attorney Edward Bustamante, representing Rafael Ramirez-Martinez on a methamphetamine distribution charge, urged U.S. District Judge Kea Riggs to delay the trial, urging her to “take a cautious approach to this rare, if not unique, set of factual and legal circumstances.”

“The public’s interest in avoiding the expense of trial and preserving scarce judicial resources supports granting a continuance in this matter especially under this unique scenario where the expense, time and resources of a trial become a nullity should Judge Nuffer rule in favor Rafael Ramirez-Martinez,” the defense motion stated.

Assistant U.S. Attorney David Hirsch has objected, stating in a response that the disqualification issue could possibly be appealed to the U.S. Supreme Court, so “the litigation is likely to be tied up for months, in the best case.”