US Attorney's ‘acting’ appointment challenged as invalid

A U.S. Department of Justice maneuver last month to retain Ryan Ellison as New Mexico’s U.S. Attorney circumvented the law, according to a federal public defender who wants Ellison and other federal prosecutors in the state to be disqualified from participating in criminal prosecutions.

The motion, filed by assistant federal public defender Buck Glanz in a pending criminal assault case, seeks a U.S. District Court ruling on the controversial legal issue that is allowing U.S. Attorney appointees of the Trump administration here and elsewhere to serve without the traditional consent of the U.S. Senate or appointment by the judiciary.

Instead of seeking Senate confirmation of Ellison’s appointment, as is the traditional process, U.S. Attorney General Pam Bondi appointed Ellison as “acting” U.S. Attorney on Aug. 17. Prior to that, his title was “interim” U.S. Attorney, an appointment that is generally limited to 120 days and had expired two days earlier.

An appointment of an “acting” U.S. Attorney would ordinarily go to a first assistant U.S. attorney, unless the president selects another senior officer, but Glanz stated that Bondi, not President Donald Trump, appointed Ellison. The term of an “acting” top federal prosecutor is 210 days.

Ellison, who has been with the U.S. Attorney’s Office since 2018, was named interim U.S. attorney on April 17. He replaced Alexander Uballez, a Biden appointee now running for mayor of Albuquerque, who resigned last February at Trump’s direction.

Glanz’s motion contends that Ellison’s post-Aug. 15 actions are unlawful and render the prosecutions subsequently filed by attorneys he supervised as invalid. Glanz declined to comment Friday.

A U.S. Attorney’s Office spokeswoman Tessa DuBerry told the Journal that Ellison is “lawfully” serving, subject to the Federal Vacancies Reform Act.

“Mr. Ellison submitted vetting documents to New Mexico’s U.S. Senators in early August,” DuBerry said, “and remains appreciative of their commitment to thoroughly review his qualifications.”

“It is unknown how long the formal nomination and Senate confirmation process will take,” she added. In the meantime, DuBerry said, the U.S. Department of Justice will be filing a “timely response in opposition (to Glanz’s motion).”

Glanz’s motion was filed in the pending case of Joshua Black, a Shiprock man who was indicted Aug. 26 on federal assault charges. Glanz is also asking the criminal charges against his client be dismissed because, he said, Ellison is purported to have approved the prosecution but lacks the statutory authority to do so.

“The Court should remedy the error by dismissing the indictment,” Glanz wrote in the motion filed Tuesday in U.S. District Court in Albuquerque.

The process used to appoint Ellison “circumvented the limitations that Congress has imposed on temporary service in important federal offices like U.S. Attorney,” Glanz stated in his motion.

Glanz had asked that federal judges in New Mexico appoint a new interim U.S. Attorney, an action they declined to take when Ellison’s 120-day appointment ended last month.

“The 120-day time limit should be strictly enforced to prevent the very ‘mischief’ it was designed to counteract,” stated the defense motion.

Congress enacted that law “because it perceived that the Executive Branch was subverting the traditional Senate confirmation process with indefinite ‘interim’ U.S. Attorney appointments,” the motion stated.

“That 120-day clock was enacted in 2007 to combat a particular mischief that concerned Congress: the indefinite replacement of Senate-confirmed U.S. Attorneys with non-confirmed temporary appointments,” Glanz’s motion stated.

Such moves, members of Congress worried, would permit the executive to improperly skirt the Senate confirmation process — and undermine longstanding Senate practice favoring home-state Senator input in the selection of U.S. Attorneys, the defense motion stated.

“If the Court concludes that Mr. Ellison’s ongoing service as acting U.S. Attorney complies with the governing statutes, it will be ratifying a vacancy scheme in which the Attorney General can designate never-confirmed individuals to service as interim or acting U.S. Attorneys potentially in perpetuity,” Glanz argued.

The dismissal should be with prejudice — meaning the case can’t be refiled — “not without, unless and until the District of New Mexico obtains a legitimate United States Attorney,” the defense motion stated.

“Dismissal with prejudice is the only available way to deter the administration’s improper attempts, now spanning multiple districts, to circumvent congressional limits on acting or interim officers. A lesser remedy will insufficiently deter similar conduct in the future,” Glanz’s motion stated.