President Donald Trump’s latest challenge to American political customs — and the legal system — is now playing out in Virginia.
Over the past month, the Trump administration has pushed out both of the U.S. attorneys he had nominated in Virginia, first Todd Gilbert in the Western District and now Erik Siebert in the Eastern District.
When Gilbert was forced to resign in late August, it was a dispute over personnel. Gilbert wanted to appoint his own deputies, as had been the longstanding practice. The Trump administration wanted more control and apparently wanted one specific deputy in the office out.
That was unusual, perhaps even unprecedented, but ultimately was a personnel matter — and no one seemed to dispute that the Trump administration had the right to engage in that level of micromanagement if it really wanted to. The ouster of Siebert on Friday is far more serious, because this involves the president of the United States essentially ordering the prosecution of a political rival — and getting rid of one of its own prosecutors who apparently didn’t see enough evidence to make the case worth pursuing.
Trump followed this up by posting (perhaps accidentally) a message to his attorney general with a longer list of people he wants to see prosecuted and the nomination of one of his former personal attorneys, who has no prosecutorial background, to be the next U.S. attorney for the Eastern District of Virginia. This will run afoul of the traditional requirement that nominees have the support of the state’s senators, even if they are from the opposite party, as Mark Warner and Tim Kaine are.
Much of this has played out over the weekend in social media posts from the president, some of which have rhetorically roughed up a lawyer who is part of one of Virginia’s most respected Republican families.
For those who spent the weekend doing things other than monitoring the news, let’s review, because this is something that will likely generate more fireworks in the days and weeks to come.
This will begin as a civic lesson. For purposes of federal prosecutions, Virginia is divided into two districts, Eastern and Western. The top prosecutor in each is the U.S. attorney, who is nominated by the president and subject to Senate confirmation. Beneath him or her are many deputies, who are typically career lawyers who serve through multiple administrations of different parties. Historically, once in office, U.S. attorneys have had the leeway to pick their own deputies and run their offices the way they say fit, within broad guidance from the administration in power. For instance, George W. Bush’s attorney general, John Ashcroft, directed U.S. attorneys to charge defendants with the highest provable offense. Barack Obama’s attorney general, Eric Holder, issued directives on how drug cases and gun cases should be handled. None, though, got involved in what cases those should be.
Trump is challenging both those traditions — we saw the personnel side of that in the Gilbert situation, and now we see the legal side in the Siebert ouster.
The Washington Post reported late last week that Siebert had declined to prosecute two people that Trump wanted to see in the dock: former FBI director James Comey, who had overseen the investigation into Russian interference in the 2016 election, and New York Attorney General Letitia James, who secured a civil judgment of fraud against Trump’s businesses last year. Comey comes under the Eastern District’s jurisdiction because he lives in Northern Virginia. James’ case involves mortgage paperwork she filed for her niece’s purchase of a home in Norfolk. The Post reported that Siebert had found “insufficient evidence” to warrant prosecuting James.
The Post went on to report: “Those decisions sparked a tense behind-the-scenes battle this week over Siebert’s future, which divided officials at the White House, the Justice Department, and other parts of the administration and set off a push by some Trump officials to remove him from his post. The resulting pressure campaign marked a significant escalation of the Trump administration’s efforts to influence Justice Department decisions, especially in cases involving people the president considers adversaries.”
Late Friday, Trump told reporters: “I want him out.” Siebert then submitted his resignation.
At 12:14 a.m. Saturday, Trump posted on his Truth Social account: “He didn’t quit, I fired him!” Trump said he made the decision to boot Siebert “when I was informed that he received the UNUSUALLY STRONG support of the two absolutely terrible, sleazebag Democrat Senators from the Great State of Virginia … Next time let him go in as a Democrat, not a Republican.”
Now it’s time for more civics: It is the custom (key word) that presidents only nominate U.S. attorneys who have been recommended by that state’s senators, no matter their party. Earlier this year, Virginia’s two Democratic senators, Warner and Kaine, convened what they billed as “bipartisan panels” to review potential candidates and wound up recommending two candidates in each district.
In the Western District, both nominees recommended by the two Democratic senators were former Republican officeholders; Trump ultimately chose Gilbert, the former speaker of the Virginia House of Delegates, who lasted a month.
In the Eastern District, Trump chose Siebert, who has now lasted eight months.
Both were pushed out while still interim appointees; neither had come up for a confirmation vote yet.
One other thing: The Washington Post reports that Siebert was first recommended to Trump not by Virginia’s two Democratic senators but by the staff of its Republican governor, back during the presidential transition. That point seems not to register with Trump.
On Saturday afternoon, Trump posted on Truth Social a message directed at Attorney General Pam Bondi in which he further disparaged Siebert: “We almost put in a Democrat supported U.S. Attorney, in Virginia, with a really bad Republican past. A Woke RINO, who was never going to do his job. That’s why two of the worst Dem Senators PUSHED him so hard.”
RINO stands for Republican In Name Only; it’s a term Republicans have adopted to criticize party members they disagree with.
Since I suspect most of our readers have never heard of Siebert before this, let’s review his history: He’s a graduate of Virginia Military Institute and worked as a police officer before going to law school. He later clerked for Henry Hudson, a federal judge in the Eastern District with a particularly hardline reputation. Early in his career, when Hudson was a Republican commonwealth’s attorney in Arlington, Hudson acquired the nickname “Hang ‘Em High Henry” and once said: “I live to put people in jail.” That Siebert wanted to work for Hudson does not scream “woke RINO.”
Siebert went on to become a career prosecutor in the Eastern District. A biography still posted on the Justice Department website extols his service “handling a variety of cases related to violent crime, international and domestic drug trafficking, illegal possession and trafficking of firearms, fraud, child sexual exploitation, illegal immigration, and public corruption offenses. During his time as a prosecutor, Mr. Siebert also served as the Lead Task Force Attorney for the Organized Crime Drug Enforcement Task Force (OCDETF) for EDVA. Mr. Siebert has received numerous awards related to his prosecutions, including the 2018 OCDETF, Mid-Atlantic Region, Case of the Year Award; and the 2024 Washington/Baltimore High Intensity Drug Trafficking AREA (HIDTA) Award for Outstanding Community Impact Investigation.”
To truly understand the significance of Trump’s bad-mouthing of Siebert, you have to understand genealogy. Let’s start with Richard Cullen, one of the biggest Republican legal names in the state. Cullen is a former U.S. attorney and a former state attorney general (serving out Jim Gilmore’s term in the late 1990s). As a private attorney, he once represented former U.S. House Majority Leader Tom DeLay, R-Texas, and then-Vice President Mike Pence. He was the chairman of the powerful Richmond law firm McGuireWoods until he became counsel to Gov. Glenn Youngkin. Siebert is Cullen’s son-in-law.
In bashing Siebert, Trump isn’t bashing some random attorney; he’s going after one of the most well-connected Republican families in the state. Siebert’s brother-in-law — one of Cullen’s sons — is Thomas Cullen, whom Trump appointed as U.S. attorney in the Western District in his first term and later named a federal judge.
To call Siebert a “woke RINO” with “a really bad Republican past” would be laughable if the situation weren’t otherwise so serious.
When he was out of office, Trump accused Democrats of weaponizing the legal system to go after him. Now back in office, he is attempting to do exactly the same.
That message to Bondi that Trump posted Saturday appears to have been written as a private “direct message” to his attorney general that got posted accidentally. (That’s not an original observation; many others have come to the same conclusion.) If that’s so, this once again raises the question of whether the president is using unsecure platforms to communicate. How many Chinese and Russian hackers are now trying to figure out how to get into his DMs?
However that message was intended, Trump seemed to be directing Bondi to pursue criminal cases against Comey, James and California Sen. Adam Schiff. “We can’t delay any longer; it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!) OVER NOTHING. JUSTICE MUST BE SERVED NOW!!!”
This is not the way the American legal system is supposed to work. You may think the cases against Trump were unfair, but the president is not supposed to order the prosecution of specific people — even those who have investigated him in the past. That may be more a matter of custom than law, but Trump has now shattered that custom. Simply as a practical matter, his post makes it unlikely that any of those three people he named will ever get successfully prosecuted. Any defense attorney would salivate over his post. Trump has inadvertently poisoned his own well.
Also on Saturday, Trump posted that he would nominate Lindsey Halligan as the next U.S. attorney for the Eastern District. This will pick fights with Democrats in the U.S. Senate on several levels.
First, Halligan has been one of Trump’s personal attorneys. This looks like Trump wants to install someone close to him specifically to pursue prosecutions of political rivals.
Second, Halligan has no experience as a prosecutor; she’s been an insurance lawyer in Florida. It’s not unusual for a U.S. attorney to have no background as a prosecutor, although all four of the candidates Warner and Kaine recommended to the White House did. As a special adviser to the president, she’s been in charge of removing “improper ideology” from the Smithsonian.
Third, Halligan’s nomination comes without a recommendation from the two senators. This runs afoul of the Senate’s “blue slip” tradition under which senators can block a nominee from their own state through an archaic “blue slip” of paper. Trump has railed against this custom and singled out Senate Judiciary Committee Chair Charles Grassley of Iowa for upholding it. He posted on social media in August: “The only candidates that I can get confirmed for these most important positions are, believe it or not, Democrats! Chuck Grassley should allow strong Republican candidates to ascend to these very vital and powerful roles, and tell the Democrats, as they often tell us, to go to HELL!”
Trump is factually wrong and his own record shows it. In Virginia, he nominated a former Republican House speaker (Gilbert), who was certainly not beloved by Democrats when he was in Richmond but was respected for his legal and political acumen. Gilbert would have been confirmed easily.
Grassley and other Republicans have defended the “blue slip.” While this exists purely as a custom, it does serve as a legislative check on executive power — another part of our system of checks and balances. When there’s a Democratic president, this gives Republican senators the assurance that the president can’t appoint nominees they consider unacceptable in their states. It may be worth debating whether this is a wise custom, but the philosophical question is really how much power in a democracy should the majority party and the minority party have relative to each other. Under the blue slip system, the minority party has some veto power over certain nominees. Without it, the majority party (assuming it controls both the presidency and the Senate at the same time as Republicans now do) can do more or less what it wants. Trump is looking short-term at just his current time in office; Republican leaders in the Senate may have a longer view and realize there’s a time when the political balance may shift and they will want to be able to restrain a Democratic president.
Trump has tried to circumvent Senate confirmation processes by naming his nominees as interim U.S. attorneys — that’s how both Gilbert and Siebert were already in their jobs. It’s unclear whether Trump will attempt to install Halligan as the interim U.S. attorney for the Eastern District. Before Trump said Saturday that he would nominate Halligan, Bondi appointed Maggie Cleary to that position. (Cleary had been one of the candidates for the Western District post but didn’t get a senatorial recommendation. She’s been an assistant commonwealth’s attorney in Culpeper County and before that was deputy secretary of public safety and homeland security in the Youngkin administration.)
If Trump does try to make Halligan the interim U.S. attorney, he runs the risk of creating a situation like the one now playing out in New Jersey. There, Trump picked another of his personal attorneys as U.S. attorneys. The state’s two Democratic senators “blue slipped” Alina Habba’s nomination. When her 120-day interim status ran out, the federal judges in that district ruled that the position was vacant and used a little-used power to declare that her top deputy should serve as interim. The law in question says that if there’s not a Senate-confirmed appointee in 120 days, the judges can install their own interim prosecutor. Trump has tried to get around that by withdrawing Habba’s nomination and trying to make her interim again. All that has provoked a court case about who really is the current top federal prosecutor in New Jersey.
Of note: When Siebert’s 120-day interim status ran out, the judges in the Eastern District unanimously used their power to extend his term indefinitely. How might they feel about an interim appointment for Halligan? Seven of the 11 active judges there are Democratic appointees.
It’s not hard to imagine a New Jersey-style controversy arising here, and then some: Suppose Trump names Halligan as the interim, she starts pursuing criminal cases against the people Trump wants targeted; the senators block her nomination and then at the 120-day mark the judges say Halligan’s authority has expired and they name their own choice. Or, as a variation, Trump lets Cleary stay as interim, and she starts pursuing those cases. After 120 days, the judges could rule her authority has expired.
The political battles have already begun. Warner and Kaine issued separate statements over the weekend that said essentially the same thing.
From a Warner spokesperson: “He remains focused on ensuring U.S. Attorney offices are able to uphold justice and operate independently, not as political arms of the presidency. He’s deeply concerned by Donald Trump’s pattern of firing prosecutors who wouldn’t do his bidding and will continue to oppose any effort to undermine the integrity of these offices.”
From a Kaine spokesperson: “He is very focused on the outrageous circumstances surrounding both Erik Siebert and Todd Gilbert’s ouster and hopes that all attention will be focused on ensuring that the US Attorney’s offices in Virginia, that have enjoyed such strong reputations for decades, do not devolve into engines for political persecution.”
And then there was this, from Rep. Don Beyer, D-Alexandria, who as a House member has no formal role in the confirmation process but represents a district where the U.S. attorney for the Eastern District is based: “Donald Trump hates the rule of law and is making all of us less safe by firing seasoned professionals, to replace them with goons and yes men who will bend the law to his whim. This is corrupt as hell.”
Virginia Republicans have been publicly silent, but they surely understand that when the president of the United States goes after someone like Siebert — who has been one of their own — that these aren’t normal times.
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