Virginia’s three Republican congressmen from the western part of the state have formed their own search committee to select candidates for the next U.S. attorney for the commonwealth’s Western District.
Their effort comes after Virginia’s two Democratic U.S. senators conducted interviews and provided two names for consideration to the White House to replace acting U.S. Attorney Zachary Lee. Lee assumed the role on Dec. 21, following the resignation of U.S. Attorney Christopher Kavanaugh.
The power to appoint a new U.S. attorney belongs to President Donald Trump, subject to Senate confirmation.
“There is precedent in Virginia for U.S. House Members to express their preferences to a president of their party. Accordingly, we believe creating a House panel afforded us the opportunity to give our insights into the opening and candidates for the White House to consider,” said Reps. Morgan Griffith, R-Salem; Ben Cline, R-Botetourt County; and John McGuire, R-Goochland County, in a joint statement.
The three congressmen acknowledged that the U.S. Senate will be the body to vote to confirm the appointment of the candidate selected by the Trump administration. They added that their panel considered a “number” of candidates and their thoughts have been communicated to the White House. They did not respond when asked for the names of the candidates considered by their panel.
The candidates
The decision of the congressmen to act on their own came after Warner and Kaine vetted and recommended House of Delegates Minority Leader Todd Gilbert, R-Shenandoah County, and Robert Tracci, the former commonwealth’s attorney in Albemarle County who now works in the state attorney general’s office.
Gilbert and Tracci were both interviewed by the congressmen’s panel. Maggie Cleary, deputy commonwealth’s attorney in Culpeper County, and Justin Griffith, commonwealth’s attorney in Pulaski County, were also interviewed by the House panel.
All four are Republicans, and all four were interviewed by Democratic senators Mark Warner and Tim Kaine.
“My federal prosecution experience, leadership record as elected Commonwealth’s Attorney for Albemarle County, and as Section Chief for Major Crimes in the Virginia Attorney General’s Office uniquely qualify me to effectively serve as U.S. Attorney for the Western District of Virginia on day one,” Tracci said via email.
“I’m very grateful that the congressmen are taking this seriously and putting serious time and thought into this. I just hope the congressmen are looking for the best person for the job and not a political pick because I do get that with the senators, it was more of a politics game,” Cleary said. “I think that U.S. attorney is a job for a prosecutor and not a politician. I think that it’s really important that there is someone who does that job who is familiar with federal prosecution, familiar with federal work and most importantly familiar with the office.”
She added that she has spent the whole of her legal career in the Western District of Virginia, and she has appeared in federal court in Harrisonburg, Lynchburg, Charlottesville, Abingdon and Roanoke.
“My focus during both of these interviews was what the line prosecutors at the U.S. Attorney’s Office need to achieve: the single objective of keeping the citizens of the United States safe,” Justin Griffith said, and noted that he’ll continue to represent Pulaski County if he were to be selected for the role. “By having two panels, I believe it ensures that all voices are heard and considered. I’m ready if given the duty of a lifetime.”
Gilbert’s office did not respond to a request for comment.
If Gilbert were to be selected, it would set in motion a leadership scramble among Republicans in the House of Delegates as the party heads into an election. In an interview this week with The Virginia Scope, Gilbert said he was “conflicted” about passing up a possible chance to be speaker of the House again but that being a U.S. attorney was a “once in a lifetime opportunity.”
Evidence of increasingly partisan politics
“I’m not surprised,” Kaine said Thursday about the congressmen’s effort to do their own vetting of candidates for the U.S. attorney seat. “This is a Senate prerogative, the Senate gives advice and consent to presidential nominees. That doesn’t mean [members of Congress] can’t recommend to the White House but Sen. Warner and I have already had a bipartisan interview panel of former U.S. attorneys. … We made two really good recommendations to the White House.”
“I’m disappointed,” Warner said of the congressmen’s actions. “I’ve worked well with all of our Republican House members. We take a lot of input from those members. The idea that they’re setting up a separate partisan review is not the way the process works.”
Both senators added that the White House had already taken their recommendation for the U.S. attorney seat for the Eastern District of Virginia.
It is traditional for senators to do the initial vetting of candidates, even if they’re from the opposite party, but that tradition appears to have fallen by the wayside amid increasing polarity in Congress.
“As the US becomes increasingly partisan, this phenomenon may become worse,” said Carl Tobias, a law professor at the University of Richmond, via email. He added that the two candidates whom Warner and Kaine recommended have “very solid GOP credentials.”
David Richards, a professor at the University of Lynchburg, said that there is usually a lot of deference to a state’s U.S. senators regarding their candidates for positions such as these, because that chamber will be taking up the vote to confirm the candidate selected by the president. In this case, both of Virginia’s senators are Democrats, and Republicans have a majority in both chambers of Congress as well as the White House.
Richards noted that situations like this do occur — in the case where both of the senators are from the opposite party of the president, other leading government officials like Griffith, Cline and McGuire can suggest names to the president for consideration for roles such as these.
“It’s a little unusual and I think clearly in this case it’s a partisan attempt on the part of Cline and McGuire and Griffith to suggest somebody that maybe would be more friendly towards Trump,” he said.
The House panel’s precedent
The region’s Republican members of Congress “expressed their preferences” to fill the role in 2017 during the first Trump administration as well. They submitted a separate list of four candidates, which included Tracci, outside of the two U.S. senators’ recommendations.
Thomas Cullen was one of two candidates recommended by Warner and Kaine in 2017 to become the U.S. attorney for the Western District.
He was selected by Trump for the role and confirmed by the Senate in 2018. Cullen had also been recommended by the House panel, according to a report by The Roanoke Times, along with three other candidates. Trump appointed Cullen in 2019.
The Western District has courts in Abingdon, Charlottesville, Danville, Harrisonburg, Lynchburg and Roanoke.