STEVE INSKEEP, HOST:
Federal judges keep telling the Justice Department that President Trump's hand-picked U.S. attorneys are serving illegally. The latest instance is in New Jersey. A judge disqualified the acting U.S. attorney because she served too long without Senate approval. The administration replaced her with a team of three lawyers, and the same judge says that was also unlawful. In other districts, when judges appoint prosecutors to lead these offices, the Department of Justice just fires them. So what's the effect on the justice system? Kim Wehle is on the line. She's a constitutional scholar and law professor at the University of Baltimore. Kim, welcome back.
KIM WEHLE: Morning, Steve.
INSKEEP: OK. So these cases are complicated. I'm learning some of these rules in real time myself over the past year. But what is the fundamental idea, the fundamental requirement that the president is supposed to follow when appointing U.S. attorneys?
WEHLE: The Appointments Clause of the United States Constitution No. 1 and statutes passed by Congress filling in the blanks. Essentially, this boils down to the idea that power gets distributed under our Constitution, unlike under King George III - right? - 200 and almost 50 years ago, the yokes of despotism - the judge uses that word, despotism - were thrown off.
INSKEEP: Wow.
WEHLE: And the idea is, listen, Congress creates the offices, and then the Senate has confirmation authority over the president's appointment picks because we're talking, Steve, about grand juries. We're talking about indictments. We're talking about the power through the criminal justice system to take people's liberty and ultimately, even send them to the death chamber. And so the idea is that all of the authority to create the office and make the appointments cannot happen in the White House. It has to be split with Congress.
INSKEEP: And then why did the judge in this New Jersey case disqualify three prosecutors assigned to run the office after the first prosecutor was deemed illegal?
WEHLE: Because the Justice Department is trying to use sort of cute maneuvers to get around this appointment process. So basically, this time, they said, oh, you didn't like Alina Habba and how we did that, so we're going to take the U.S. attorney of New Jersey, we're going to split it into three little jobs, and each of the little jobs is authorized. The court calls it the triumvirate U.S. attorney. And he says, listen, you're not fooling me, I know what you're trying to do, you're trying to outmaneuver the appointments process, I'm not going to let you do it, and if you keep trying to do these things, I'm going to start dismissing indictments.
INSKEEP: Ooh. Let's talk about that. When you say dismissing indictments, what could happen here?
WEHLE: Well, he says if - you know, if it's somebody without authority to prosecute a particular defendant, then the entire prosecution could be invalid. He says maybe it's possible to ratify it after the fact if you get somebody in there who's actually appointed pursuant to the law, but if you keep trying to dodge the law, I'm just going to dismiss these outright. And, of course, then that upends the criminal justice system in general - the notion that you want prosecutors to actually be prosecuting people that could be dangerous to the public.
INSKEEP: Is it reasonable to expect that there are going to be plenty of defense lawyers in months and years to come who are going to say that anything that happened over these past several months is going to be invalid?
WEHLE: Yeah. And by my count, we're talking about five jurisdictions so far. You know, the judge says, listen, all you have to do is follow the rules, you know, basically, your job is to make this a functioning office, and now we're at a standoff. So, yeah, I think these judges are getting frustrated, and I think they have a potential remedy, which in other context, Steve, when it comes to Donald Trump ignoring the law, there aren't really clear remedies. Here they're - this judge is saying, the remedy's going to be some of these people are going to go free because you're not following the process.
INSKEEP: And what do you think about the administration's tactic of just firing the people the judges appoint?
WEHLE: Well, it's disturbing in particular that the Deputy Attorney General Todd Blanche is out there saying, listen, it's the president's authority. That's not true. Under the law, if an interim after 120 days, judges can appoint inferior officers. That's under the Constitution. That's pursuant to this statute. The judges are coming in and saying, OK, we'll pick somebody from our jurisdiction. If the president isn't going to go through the Senate, we can do it. And the deputy attorney general is running around saying that's unconstitutional. Not true.
INSKEEP: Constitutional law professor Kim Wehle. Thanks for your insights as always. Pleasure to hear from you.
WEHLE: Great to be with you. Transcript provided by NPR, Copyright NPR.
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