Two years after his inauguration, President Trump still has not nominated anyone to fill the top federal law enforcement post in Arizona.
Trump has taken four times as long as the two previous presidents to nominate a U.S. attorney for the District of Arizona, who oversees thousands of prosecutions every year along one of the busiest smuggling corridors on the U.S.-Mexico border.
Without a nomination, Arizona was left out of a wave of eight confirmations by the Senate in early January. Arizona and Western Oklahoma now are the only districts in the country without a U.S. attorney, according to records from the Department of Justice and the Senate Judiciary Committee.
The U.S. attorney position in Arizona has been vacant for “far too long,” Sen. Martha McSally said in a statement sent to the Arizona Daily Star.
Arizona’s border with Mexico is “ground zero” for smuggling drugs and people, said McSally, a Republican who took office this month.
“It is simply unacceptable that an office so critical to law enforcement and the administration of justice has been allowed to function for two years without a U.S. Attorney,” she said.
For the time being, the name at the top of federal indictments of drug smugglers, border crossers, money launderers, and firearms traffickers in Arizona belongs to First Assistant U.S. Attorney Elizabeth A. Strange.
Strange started at the U.S. Attorney’s Office in early 2008. When former U.S. Attorney John Leonardo resigned days before Trump’s Jan. 20, 2017, inauguration, Strange became the acting U.S. attorney. Strange had to step down as acting U.S. attorney in November 2017 due to time limits on the tenures of acting officials.
Whoever is eventually appointed to be U.S. attorney will make decisions on high-profile cases and new prosecution policies, as well as represent the federal government in civil litigation and coordinate multi-agency investigations.
Since January 2017, federal prosecutors made the decision to retry a Border Patrol agent accused of killing a Mexican teenager. They also prosecuted dozens of parents who were separated from their children during border-crossing cases and filed criminal charges against nine humanitarian aid volunteers.
Federal prosecutors also expanded the scope of charges brought against suspected illegal border crossers, drug-smuggling scouts and marijuana backpackers, all of which led to thousands more prosecutions, U.S. District Court records show.
“Blue slip” process
Out of 93 U.S. attorney positions nationwide, the Senate has confirmed 78 nominees from Trump, Senate records show.
Two others were appointed by then-Attorney General Jeff Sessions and 10 were appointed by federal judges. Another nominee’s name was sent to the Senate, but he hasn’t been confirmed yet. Arizona and the Western District of Oklahoma are led by first assistant U.S. attorneys.
Traditionally, senators recommend nominees for U.S. attorneys in their state, known as the “blue slip” process.
Former Sens. John McCain and Jeff Flake recommended Andrew Pacheco, the former head of the criminal division at the Arizona Attorney General’s Office, in April 2017. But Trump did not nominate Pacheco.
“Filling this post is a top priority for me, and I’ve let the administration know that,” McSally said.
“I am working closely with the administration, my colleagues in the Senate, and law enforcement officials in Arizona to make sure a qualified candidate for U.S. attorney in Arizona is nominated and confirmed as quickly as possible,” McSally said.
For Sen. Kyrsten Sinema, a Democrat who also took office this month, "filling this vacancy is important to us and we are currently in discussions about doing so," according to a statement from her office.
When the wheels come off the nomination process, federal judges are allowed to appoint a replacement.
But Arizona is in a unique situation that doesn’t quite fit into the legal framework.
Without a presidential nomination, federal law allows the U.S. attorney general to appoint a replacement to serve for 120 days. When the appointment expires, federal judges in the district can appoint a replacement until the vacancy is filled.
In Arizona, “we don’t believe it’s something the court can even do,” said Brian Karth, U.S. District Court executive in Arizona.
The obstacle comes out of the intricacies of federal law and the bureaucracy of the Justice Department.
Although Strange served as “acting” U.S. attorney in 2017, Sessions did not appoint her as the official U.S. attorney at any time.
Under federal law, judges don’t have jurisdiction to replace a U.S. attorney unless the attorney general already appointed someone and that appointment expired, Karth said.
If there never was an appointment to begin with, as is the case in Arizona, then there is no trigger to give judges jurisdiction, Karth said.
Editor's note: This story was updated to include a statement from Sinema's office.