McGregor Scott, President Donald Trump’s nominee for U.S. attorney in California’s Eastern District, has taken the post early, thanks to a holiday appointment by the district court.
Career prosecutor Phillip Talbert, who served as the district’s U.S. attorney after Obama appointee Benjamin Wagner stepped down in May 2016, had announced his intent to resign the post and to resume his position as the department’s first assistant. “I was ready, the office was ready and it was the appropriate time to leave Orrick,” Scott said Tuesday through a spokeswoman.
Separately, the U.S. Justice Department on Wednesday named 17 interim U.S. attorneys in districts around the country. The previously serving acting U.S. attorneys in those districts were approaching the maximum time allowed as head of the office under the federal Vacancies Reform Act.
Nicola Hanna, a Gibson, Dunn & Crutcher white-collar partner in the firm’s Irvine and Los Angeles offices, got the nod for interim U.S. attorney for the Central District of California. His term would last 120 days or until the Senate confirms the president’s nominee.
Hanna wasn’t immediately reached for comment.
“Nick is an outstanding lawyer with excellent judgment, unwavering principles and strong leadership skills. He will make an outstanding U.S. Attorney,” Gibson Dunn chairman Ken Doran said in a statement. “His departure is a loss for our firm, but a huge gain for the government, justice and the rule of law.”
Orrick’s Scott got to the office through a slightly different process than Hanna: Federal law allows a district court to fill a U.S. attorney vacancy. Selecting a nominee who is awaiting Senate confirmation hearings is rare, according to the U.S. Administrative Office of the Courts. The last such appointment was made more than five years ago, a spokesman for the U.S. Court of Appeals for the Ninth Circuit said.
Scott must still be confirmed by the Senate. Approval seems likely, given the bipartisan praise his nomination received. No date yet has been set for Scott’s confirmation hearing.
Scott’s appointment marks his second stint as U.S. attorney in the 34-county Eastern District. He previously served as the region’s top prosecutor for six years under President George W. Bush.
“I am honored to once again lead the committed public servants in this outstanding office,” Scott said in a prepared statement. “I look forward to working with them and our law enforcement partners to keep our communities safe and to provide the United States with the highest quality legal representation in all the matters we handle.”
O’Neill said that he and Talbert did not discuss who should be appointed U.S. attorney when Talbert submitted his resignation, although Scott was the “logical” choice given his pending nomination, the judge said. O’Neill said it would be “an appropriate inference to draw” that Talbert stepped down so Scott could effectively begin his term in office. The chief judge said he spoke with U.S. Department of Justice officials before acting to ensure Scott’s appointment would comply with relevant statutes.
Ronald Weich, dean of the University of Baltimore School of Law, said he didn’t recall preconfirmation appointments happening much during his time running the DOJ’s legislative office under President Barack Obama. The then-Democratic majority in the Senate—while it lasted—moved quickly to appoint the president’s nominees.
“In general, it is a poor practice to have someone fill a position to which he or she has been nominated because, one, senators may find that move presumptuous, and two, the appointee may make a decision in office that complicates his or her nomination,” Weich said.
Rory Little, professor at UC Hastings College of Law, said such an appointment can be “a good idea … so long as the person is acceptable to the district.” Otherwise, a long U.S. attorney vacancy can cause “the office to drift,” he said.
Scott is Trump’s only formally nominated U.S. attorney so far among California’s four districts. Brian Stretch, the top federal prosecutor in the Northern District since 2015, announced Wednesday he is leaving his post to join the San Francisco office of Sidley Austin.
The full list of the Sessions appointments is posted below:
Shawn Anderson – Districts of Guam and the Northern Mariana Islands
Geoffrey Berman – Southern District of New York
Gregory Brooker – District of Minnesota
Craig Carpenito – District of New Jersey
Stephen Dambruch – District of Rhode Island
Richard Donoghue – Eastern District of New York
Dayle Elieson – District of Nevada
Duane Evans – Eastern District of Louisiana
Timothy Garrison – Western District of Missouri
Nick Hanna – Central District of California
Joseph Harrington – Eastern District of Washington
Grant Jaquith – Northern District of New York
Maria Chapa Lopez – Middle District of Florida
Kenji Price – District of Hawaii
Matthew Schneider – Eastern District of Michigan
Gretchen Shappert – District of the Virgin Islands
Alexander Van Hook – Western District of Louisiana