OPINION: Ellison should step down, require confirmation

Our local U.S. Attorney’s Office is being dragged into national efforts to circumvent the Constitution. It is up to Ryan “Ry” Ellison, now the “acting” U.S. attorney for New Mexico, to stop this now by stepping down and submitting to Senate confirmation. Doing anything else will demonstrate a lack of the integrity and independence essential to serving in a role that requires fidelity to the rule of law. As a former federal prosecutor, I’m worried. New Mexicans across the political spectrum should worry, too.

The U.S. attorney exercises incredible power. Federal criminal laws carry such long sentences that the charges a U.S. attorney approves can result in life sentences even in non-violent cases. Because our state laws carry substantially lighter sentences than federal courts typically impose, many people who would be charged by the state in other parts of the country end up in federal court in New Mexico. Once there, mandatory minimum sentences regularly eliminate any discretion for the presiding federal judges; the sentence is decided by the charges the U.S. attorney approved. Victims of serious crimes on pueblos and reservations across the state have to rely on the U.S. attorney to prosecute the crimes against them. And as Immigration and Customs Enforcement uses aggressive new tactics, New Mexico’s position as a border state makes our U.S. attorney functionally the tip of the Trump administration’s spear.

The Constitution provides a check on the U.S. attorney’s power by requiring Senate confirmation. Federal laws enacted by Congress and signed by past presidents then provide guardrails while the Senate confirmation process unfolds. Initially, the president can appoint an interim U.S. attorney, but only for 120 days. If not confirmed within that window, the interim U.S. attorney is out, and the power shifts to the federal judges to select a replacement until the Senate confirms a presidential nominee.

When the judges do not make that appointment, the Department of Justice can choose an “acting” U.S. attorney. But federal law protects against using “acting” U.S. attorneys to circumvent the Senate by prohibiting “acting” U.S. attorneys from being nominated for the position. All of this is meant to check the executive branch and ensure our elected senators play a meaningful role in deciding who can be trusted with the power every U.S. attorney holds. And the U.S. Supreme Court has recognized that the Constitution includes the requirement for Senate confirmation specifically because “the power of appointment to offices was deemed the most insidious and powerful weapon of eighteenth century despotism.”

Until now, the process has worked as it should in New Mexico. With the approval of New Mexico’s senators, the Senate confirmed Trump’s first choice for U.S. attorney during his first term. That U.S. attorney, John Anderson, served with distinction. During George W. Bush’s presidency, there was a scandal over political interference with U.S. attorneys’ independence, and President Bush did not nominate a new U.S. attorney for New Mexico. The federal judges selected Gregory J. Fouratt, who now serves as a federal magistrate judge in Las Cruces. And in transition periods between presidential appointments, distinguished career prosecutors have served as “acting” U.S. attorney. In fact, the career prosecutor who was serving as the chief deputy in the office served in that role until Trump put Ellison in on an interim basis.

Now, however, the Trump administration is refusing to follow the constitutionally required process for Senate confirmation. If Ellison wants to serve as a properly appointed and confirmed U.S. attorney, he needs to buck the administration’s misguided approach, step down from the “acting” U.S. attorney role and submit to the same Senate vetting process that every one of his predecessors followed.

The Trump administration set the table for avoiding the constitutional requirement for Senate confirmation in other states. Take New Jersey. There, the administration installed Trump’s personal lawyer, Alina Habba, as the interim U.S. attorney. Habba has no experience as a prosecutor. Before her appointment, she managed to get herself and Trump sanctioned nearly $1 million in legal fees for filing a lawsuit the court found was “completely frivolous.” Once installed as interim U.S. attorney, Habba selected a career prosecutor as her chief deputy.

When the 120 days Habba could serve without Senate confirmation ended, the federal judges in New Jersey selected that chief deputy as U.S. attorney. But neither Habba nor the Trump administration was willing to accept that decision — the administration summarily fired the career prosecutor the judges selected and reinstated Habba. That is unjust and contrary to the constitutional requirement for Senate confirmation. It also sent a clear warning to every career prosecutor: Accept appointment by the judiciary to serve as U.S. attorney, and you’ll lose your job. On Friday, a federal judge held that Habba’s continued service as U.S. attorney is unlawful.

Ellison’s statements quoted in the Journal’s Aug. 16 article ignore all of this. Like Habba, his 120-day interim appointment expired without Senate confirmation, but he already is back as “acting” U.S. attorney. In the Journal article, Ellison praised our federal judges for not exercising their statutory authority to select someone for the position, but anyone who is paying attention knows the judges did not have any real choice. Every career federal prosecutor knew from what happened in New Jersey that accepting appointment by the judges would mean immediate termination, and the judges had to know that appointing someone would subject them to that fate. New Jersey set the stage nationwide, and it is foolish to ignore the impact here.

In the 120 days Ellison was allowed to serve under his interim appointment, he made decisions that raise legitimate questions about his qualifications to be our U.S. attorney. (Those decisions included signing off on a court filing that needlessly attacked one of our most respected federal judges.) But controversial candidates have been confirmed. They only have gotten there by allowing the Senate to fully vet their qualifications. Despite requests from Sens. Martin Heinrich and Ben Ray Luján to submit application materials for months, the Journal reported that Ellison ignored them until Aug. 8 — the eve of his interim appointment expiring.

At this point, Ellison needs to step down as “acting” U.S. attorney and participate in the confirmation process like everyone who has been considered for this position of responsibility under every president. If he doesn’t, he is participating in the erosion of constitutional norms and the rule of law. That disqualifies him from consideration for the job.