Once again the Attorney General seeks loyalty over independence

President Donald Trump signed an unprecedented executive order Thursday to upend the established rules of succession for U.S. attorneys, installing a loyalist to Attorney General William Barr as head prosecutor in the Eastern District of New York. 

Seth DuCharme, a career prosecutor in the EDNY, had been detailed to the Justice Department in D.C., first as special counselor to Barr, and at the end of the year took over as principal deputy coordinating the work of the nation’s U.S. attorneys. He will now succeed Richard Donoghue, who is heading to Washington to take the slot DuCharme is vacating. Unknown is whether Donoghue, who coordinated the Ukraine investigations, including those of Rudy Giuliani and Hunter Biden, would continue that oversight from D.C. or whether DuCharme would take over the role.

Donoghue’s resignation initially was to take effect  just after midnight Monday, but on Friday afternoon he made his departure effective immediately. That was to allow DuCharme to be appointed before any official vacancy would have occurred, which would have elevated Mark Lesko, the current deputy, to interim U.S. attorney. Having the second-in-command take charge was the outcome last month in the botched plan to replace the U.S. attorney for the Southern District.

Usually, U.S. attorneys are nominated by the president and approved by the U.S. Senate. However, it’s highly unlikely that Trump would get anyone through the confirmation process, so top lawyers at the White House and DOJ used a section of the Vacancies Reform Act to put DuCharme in the job.

Barr did not want Lesko, a Democrat, in the post. Lesko had worked for 10 years as an assistant U.S. attorney, mostly in the EDNY, but took a turn at politics in 2009, winning election for supervisor of Brookhaven Town. He resigned in 2012 to head Accelerate LI, an effort to commercialize Long Island’s high-end research, and he later moved to Hofstra University as vice president for economic development. Donoghue recruited Lesko to be his deputy.

The well-liked DuCharme had worked his entire career in the EDNY, but in March 2019 decamped to D.C. as a confidant to Barr. Longtime prosecutors in Brooklyn are concerned that he won’t maintain the office’s independence from the Justice Department, which has become increasingly politicized during Barr’s tenure.

It has been widely reported that the Eastern District is investigating Tom Barrack, a Trump confidant who headed the president’s 2016 inauguration committee, after he allegedly used his role to get his foreign contacts access to Trump and allegedly misspent inaugural committee money. Once a hot case, it now seems dormant.

In finding a way to ease DuCharme into the job, the White House and the Justice Department are trying to avoid the messy and embarrassing transition that happened last month, when Barr fumbled his removal of Geoffrey Berman as head of the Southern District of New York. Barr’s misinterpretation of the succession laws prevented his handpicked choice from taking over. That allowed Audrey Strauss, a career prosecutor in the SDNY, to take the reins. This time, Barr wanted to make sure he would get a loyalist.

There appears to have been some effort to have the federal judges in the Eastern District appoint DuCharme so there would be no question as to whether the section of the Vacancies Reform Act the White House cited actually applied in this case. But when that failed to happen, Barr went ahead with DuCharme using a clause in the Vacancies act that allows for the appointment of anyone who was working in the “agency” for 90 days. It’s an open question whether “agency” is narrowly defined as the EDNY, in which case DuCharme might not qualify, or whether it is viewed more broadly as the Department of Justice. It won’t be too long before a defendant will file a challenge to an indictment or order signed by DuCharme, claiming he is not a legitimate appointment. 

There doesn’t have to be a high-stakes trial these days to cause a lot of drama in New York’s federal courthouses.