Nearly a year into his second term, President Donald Trump has yet to nominate someone to serve as Vermont’s top federal prosecutor, leaving the office vulnerable to legal challenges that could disrupt criminal proceedings.
“Everyone in our court community is thinking about this issue seriously because it affects the integrity of the entire system,” Alejandro Fernandez, Vermont’s chief federal public defender, told Seven Days.
Vermont’s lone U.S. attorney position was last held on a permanent basis by Biden-appointee Nikolas Kerest. But Kerest resigned on January 20, as is typical during presidential transitions of power.
The Burlington office has since been supervised by second-in-command Michael Drescher, who was elevated from his role of first assistant to acting U.S. Attorney.
Under that title, Drescher has dutifully carried out some of Trump’s more controversial directives. He argued on behalf of the government in the high-profile immigration cases brought by Moshen Mahdawi and Rumeysa Ozturk this spring. And he heeded U.S. Attorney General Pam Bondi’s call to pursue the death penalty against 21-year-old Teresa Youngblut, who is accused of killing a Border Patrol agent.
But the Federal Vacancies Reform Act, passed in 1998, limits how long someone can serve in temporary capacities. Acting U.S. attorneys typically get 210 days, though those elevated during a presidential transition, such as Drescher, get up to 300 days.
The clock ran out November 16, and the following day, Drescher’s title was reverted back to first assistant.
The district court that covers all of Vermont is now one of just two districts out of 93 in the country without an acting, interim or permanent U.S. attorney.
Trump could change that by nominating someone to the role, but it is unclear whether he plans to any time soon. Traditionally, presidents nominate U.S. attorneys based on recommendations from both a state’s senior U.S. senator and the senior member of their own party. In Vermont, that’s Sen. Bernie Sanders (I-Vt.) and Gov. Phil Scott, respectively.
Trump has not consulted the governor about the position, according to a Scott spokesperson. Sanders’ office did not respond to multiple requests for comment about whether he has offered up any names.
A spokesperson for Sen. Peter Welch (D-Vt.), who serves on the committee that questions and votes on U.S. attorney nominees, said that he was aware of the vacancy and was working with Sanders to address it.
Vermont’s U.S. Attorney’s Office did not provide answers to a list of emailed questions. But Drescher continues to lead the office as first assistant, at least until a nomination is handed down.
Whether that’s allowed under the Vacancies Act is an open question at the heart of a series of legal challenges now winding their way toward the U.S. Supreme Court.
The challenges stem from Trump’s attempt to install his preferred choices into U.S. attorney positions elsewhere in the country through questionable legal maneuvers. Some legal scholars say the moves appear to be designed to skirt the typical appointment process, and defense attorneys have argued that the appointments are unlawful and therefore undermine the legality of cases involving those prosecutors.
District courts have so far reached differing conclusions about whether first assistants such as Drescher can perform the duties of a U.S. attorney indefinitely, according to Anne O’Connell, a professor at the Stanford University Law School who is considered an expert on federal appointments.
O’Connell believes the Trump administration has a strong argument. Both Republican and Democratic administrations have delegated certain functions to subordinates when a top position is vacant, O’Connell noted. And while that is a workaround to the Vacancies Act, it can sometimes be necessary to keep the government operating as intended. President Biden, for instance, was able to get just about one-third of all U.S. attorneys confirmed by the end of his first year in office.
“On the other hand, Congress presumably did not intend such vast delegation in enacting the 1998 Act,” O’Connell wrote in an email.
That was the opinion of the Third Circuit Court of Appeals, which on Monday ruled that Alina Habba had been serving unlawfully as the U.S. attorney in New Jersey.
The three-judge panel said the Trump administration had violated the Vacancies Act to keep Habba in charge beyond what’s legally allowed. Lingering questions over her legal authority had already delayed some cases.
The decision covers only New Jersey, Pennsylvania, Delaware and the U.S. Virgin Islands, but appeals cases can be relied on in other parts of the country when dealing with novel legal issues, experts say. The case could also soon reach the U.S. Supreme Court.
In the meantime, the Habba ruling may convince some defendants in Vermont to consider challenging Drescher’s authority to charge them.
Fernandez, the federal defender, said in an email that his office was considering all options in pursuit of the “most vigorous defense we can ethically provide.”
“There are laws that describe how this is supposed to take place,” he added. “Now, rather than conducting the important work of the Court, the District of Vermont has been left to figure out a problem foisted upon us by Washington.”