Federal judges picked a new U.S. attorney in Upstate New York. The White House fired him four hours later
Federal judges selected Donald Kinsella, a veteran litigator, as the top federal prosecutor in Upstate New York to replace a Trump appointee who was disqualified from the role.
But just hours later, after judges swore Kinsella in during a private ceremony, a White House official fired him.
“Judges don’t pick U.S. Attorneys, [the president of the United States] does,” Deputy Attorney General Todd Blanche said in a social media post. “See Article II of our Constitution,”
“You are fired, Donald Kinsella,” Blanche added.
Kinsella was just the latest official to be fired as part of President Donald Trump’s effort to circumvent the Senate confirmation process and federal vacancy law to install loyalists at the helm of top U.S. attorneys’ offices across the country.
A key part of Trump’s crusade has been dismissing any prosecutor chosen by district judges and replacing them with his preferred — often inexperienced — allies using temporary appointments.
Maintaining control over U.S. attorneys’ offices is part of Trump’s wider effort to weaponize the justice system, and many of his temporary appointees have used their traditionally nonpartisan roles to pursue cases against the president’s political opponents.
A panel of U.S. district judges Wednesday picked Kinsella, who has over 50 years of legal experience, to run federal prosecutions from the Albany-based U.S. Attorney’s Office for the Northern District of New York.
The panel did so weeks after a federal judge determined that John Sarcone, a former Trump campaign attorney who was tapped by the president to lead the office in an acting capacity, had been serving unlawfully for months.
Sarcone is the fifth Trump-appointed acting U.S. attorney deemed illegitimate by federal courts during the president’s second term. But Trump may now have an opening to again appoint Sarcone or another loyalist to lead the office. It is unclear whether the judges have standing — or the motivation — to challenge Kinsella’s removal.
The law governing U.S. attorney vacancies at times allows district judges to appoint an official to serve until a vacancy is filled through the normal Senate confirmation process. But it remains an open question whether the president can dismiss those appointed by the federal judiciary.
Peter Shane, a leading constitutional and administrative law scholar at the New York University School of Law, said in a social media post Wednesday evening that he believed Trump’s dismissal of Kinsella was likely unlawful.
“Acting [U.S. attorneys] are inferior officers who may be appointed by courts,” Shane wrote. “The power to remove inferior officers follows the power to appoint. Only the judges can fire whom they appoint.”
However, other constitutional experts have said the president can potentially fire court-appointed U.S. attorneys because another federal law says that “each United States attorney is subject to removal by the President.”
The Trump administration has taken the position that the president can largely remove anyone within the executive branch — be that a court-appointed U.S. attorney, a member of an independent federal agency or even officials leading institutions under Congress’ control.
In fact, Kinsella’s dismissal was at least the third time Trump or his political appointees in the Department of Justice (DOJ) had removed a U.S. attorney appointed by the judiciary.
Last year, Trump forced Erik Siebert, the former U.S. attorney for the Eastern District of Virginia, out of office and replaced him with Lindsey Halligan, one of the president’s former personal attorneys who had no prosecutorial experience at the time.
Halligan went on to bring failed criminal cases against former FBI Director James Comey and New York Attorney General Letitia James — two of Trump’s longtime foes. As a result of those cases, Halligan was eventually disqualified from serving as the top federal prosecutor in eastern Virginia. However, she continued to claim the title for weeks afterwards, before stepping down last month.
In a similar title shell game, Alina Habba, another one of Trump’s former personal attorneys, reassumed the top role in New Jersey’s U.S. attorney’s office after judges blocked her from continuing as the state’s top federal prosecutor.
Habba only finally stepped down after a Third Circuit Court of Appeals panel reaffirmed a lower court’s decision disqualifying her.
