Amid Delays, Politics Leave US Attorney Prospects in Limbo

U.S. Attorney’s Office for the Southern District of New York.

It’s been roughly six months since a shortlist of potential nominees for U.S. attorney of the Southern District of New York began to come into focus. Since then the search has mainly gone quiet—while the politics of naming a successor for Preet Bharara and other U.S. attorneys have gotten even thornier.

President Donald Trump has named seven nominees to fill some of the 93 U.S. attorney slots nationwide, and, according to news accounts, he’s also likely identified Ryan Patrick, the son of Texas Lt. Gov. Dan Patrick, to serve in that post in the Southern District of Texas.

But delays in key districts like the SDNY and the Southern District of Florida continue, while in most parts of the country the U.S. attorneys are “acting” leaders only.

The Trump administration has “gotten quiet about two-thirds of all the U.S. attorneys offices in the nation,” said Ira Sorkin of New York’s Mintz & Gold, a former deputy chief of the criminal division in the SDNY whose high-profile clients have included Bernard Madoff. “There is no telling when he’s going to decide, or if it’s going to be [Attorney General Jeff] Sessions who decides,” Sorkin said.

The delays in New York have raised some of the deepest concerns—particularly since it emerged that ongoing investigations of the president’s campaign by special counsel Robert Mueller may include a probe of Trump’s business ties to Russia that was launched under Bharara. The White House fired Bharara in March along with 46 Obama-era U.S. attorneys.

Among the names that have been floated so far for the SDNY post are David Miller, a former prosecutor turned white-collar partner at Morgan, Lewis & Bockius; Edward McNally, a partner at Kasowitz Benson Torres (where name partner Marc Kasowitz is Trump’s defense lawyer in the Russia investigation); Marc Mukasey, a shareholder at Greenberg Traurig; and Edward O’Callaghan, a partner at Clifford Chance.

SDNY alums stressed that the caliber of any nominee to replace Bharara is especially critical because of the office’s historical independence from the White House and the Department of Justice.

Traditionally, “the Southern District of New York tells DOJ to go fuck itself,” said Cynthia Kouril, a Long Island lawyer who served as special assistant to three U.S. attorneys in the SDNY.

Sorkin puts it more delicately, calling the Manhattan post “fiercely independent.” Both he and Kouril noted the office’s well-loved nickname: “The sovereign district of New York.” And they and other SDNY veterans predicted an uprising among their peers if Trump names a nominee for the office who appears subservient to Washington.

The SDNY’s independence has made a difference for the nation and the presidency before. In the 1970s, President Richard Nixon, through his Attorney General John Mitchell, tried to give then-U.S. Attorney Robert Morgenthau the boot. Morgenthau resisted for weeks, until it became clear that his replacement would be Whitney North Seymour Jr.

It was Seymour, after the Watergate scandal forced Nixon from office, who led a prosecution team that indicted Mitchell on obstruction charges. A jury acquitted Mitchell of those charges, but he was later convicted in the District of Columbia on conspiracy, perjury and obstruction of justice charges, earning the dubious distinction as the only U.S. attorney general to serve prison time.

Eyes on RussiaBharara’s former deputy, Joon Kim, is currently acting Manhattan U.S. attorney. In mid May, Kim announced a $5.9 million settlement with Prevezon Holdings in a money laundering and civil forfeiture action against assets of 11 corporations, based on allegations that they had laundered $230 million in a Russian tax refund fraud scheme.

The scheme was the same one uncovered by Sergei Magnitsky, a Russian lawyer who died in pretrial detention in Moscow under suspicious circumstances. His death spawned a bipartisan sanctions bill signed by then President Barack Obama in 2012, the Magnitsky Act, which prompted the Russians to retaliate by barring U.S. parents’ adoptions of Russian children. Donald Trump Jr. had said those barred adoptions were a subject of discussion during his controversial meeting with Russian contacts last year involving Jared Kushner, Paul Manafort and others—including a Russian lawyer for Prevezon.

Since news of the June meeting surfaced, the relatively small size of the May settlement has triggered questions among Democrats about potential—though unproven—White House interference in the deal.

“It looks like the DOJ reached in,” said Kouril, who worked for the 2008 Obama campaign but stressed that she never voted for a Clinton.

“The decision to settle the Prevezon case was made on the merits by this office,” an SDNY spokeswoman said in a statement. “As we noted at the time, the ultimate settlement was very favorable to the government, requiring the defendants to pay three times the amount of funds they allegedly received from the Russian treasury fraud and over 10 times the amount they allegedly laundered into real estate in the United States.”

Beyond the SDNYIn New York the delays in naming a U.S. attorney nominee may stem in part from the absence of Republican U.S. senators in the state, where both Chuck Schumer and Kirsten Gillibrand are Democrats. Under what’s known as the Senate’s “blue slip” procedure and custom, senators have the honor of approving—or not—U.S. attorney nominees for their home states.

Meanwhile, in Texas, both Sens. John Cornyn and Ted Cruz are Republicans and serve on the Senate Judiciary Committee, which must approve all U.S. attorney nominations. According to an internal email sent to federal prosecutors by acting Houston U.S. Attorney Abe Martinez that was obtained by The Houston Chronicle, the younger Patrick has received the green light from Capitol Hill. The White House has not, however, sent his name to the Senate Judiciary Committee.

In Southern Florida, Jon Sale was among the names on a shortlist of possible U.S. attorney nominees. Now of counsel at Broad and Cassel, Sale was a first assistant U.S. attorney in the Southern District of Florida, an assistant U.S. attorney in the Southern District of New York and the District of Connecticut, and a former DOJ assistant special prosecutor in the Watergate special prosecution.

A former federal prosecutor who asked not to be named said Sale was expecting his nomination to be announced but instead heard radio silence from the White House. Sale didn’t respond to a request for comment.

There may also be special concerns about the South Florida post related to Russia. A Russian billionaire with connections to Russian President Vladimir Putin purchased Trump’s Palm Beach home for $95 million in 2008. The transaction has led Kouril and a chorus of others to argue for further scrutiny.

“There should be a money laundering investigation,” Kouril said.

So far that seems unlikely—especially without a Senate-approved U.S. attorney in Southern Florida.