Finding a Donald Trump loyalist in a bureaucracy full of Joe Biden appointees might sound difficult.
But if Trump is elected president again, it could be his first order of business.
That’s because he has promised, on Day 1, to harness the power of the Justice Department in novel and legally dubious ways. To do that, he’ll likely need a pliant official to lead the department temporarily while his permanent choice for attorney general navigates Senate confirmation.
This “acting” attorney general couldn’t be just anyone. Federal law limits who can be installed as an acting department head, so Trump would have to find someone who already holds a high-ranking position in government.
The vast majority of current senior DOJ officials would be nonstarters; Trump and his closest aides would not trust them to implement Trump’s radical vision for the department. But there are a few lesser-known officials throughout the government who might pass Trump’s loyalty test and could also qualify under federal law to fill the job of acting attorney general.
One person Trump could tap: Andrew Ferguson, a Biden-appointed Republican trade commissioner who once clerked for Justice Clarence Thomas and is close with a key Trump adviser. Another possibility: Curtis Gannon, a veteran Justice Department staffer whom Trump elevated to a different acting post during his first term.
Other potential contenders for the job include Prim Escalona, a little-known conservative federal prosecutor in Alabama, and Joseph Cuffari, a controversial and embattled inspector general Trump appointed six years ago who’s still on the job.
Whomever Trump might choose, the selection may be among the first — and most consequential — decisions he makes in a second term. The person will be immediately tasked with implementing a veritable blitzkrieg of actions that Trump envisions to fulfill his promise to be a dictator on Day 1.
Trump, for instance, has repeatedly said that on his first day he’ll fire and perhaps even prosecute special counsel Jack Smith. Trump has pledged to appoint “a real special prosecutor” to probe the Biden family. He promises to initiate mass deportations, possibly by invoking the Insurrection Act. He wants to restore the travel ban he instituted in 2017 that blocked people from many majority-Muslim countries from visiting or immigrating to the U.S. And he intends to reissue an executive order he imposed near the end of his presidency to give him much greater ability to replace federal workers with political appointees.
Most, if not all, of this agenda will require sign-off or legal defense from the Justice Department. So, it’s no surprise that GOP Vice Presidential Nominee JD Vance recently declared that attorney general will be the most pivotal job in a second Trump term.
“The most important person in government, I think, after the president, for this cycle, is going to be the attorney general,” Vance declared during a recent campaign stop outside Atlanta. “We really do have to clean house. … We need a strong, smart, courageous attorney general.”
But cleaning house takes time. Historically, a new president’s attorney general hasn’t been in place on Day 1. And depending on the balance of power in the next Senate, Trump’s nominee for the position may face a protracted confirmation battle. While that could take weeks or months, an acting AG could enact Trump’s agenda right away.
It’s a playbook he’s run before. During his first term, he frequently allowed federal agencies to be run by acting officials for months at a time.
“It’s easier to make moves when they’re acting,” Trump said in February 2019. “I like acting because I can move so quickly. It gives me more flexibility.”
Lessons from the travel ban showdown
For years, the position of acting attorney general was viewed as a kind of seat-warmer — typically a holdover appointee from the prior administration who stayed on a few weeks until the new president’s pick was confirmed and in place.
All that changed soon after Trump came into office in 2017. One of President Barack Obama’s appointees, Deputy Attorney General Sally Yates, was left in place during the transfer of power while Sen. Jeff Sessions (R-Ala.) awaited confirmation as attorney general by his Senate colleagues. But Trump was intent on moving quickly. Just seven days into his presidency, he signed a sweeping executive order barring entry to the U.S. by citizens of seven majority-Muslim countries.
The travel ban — or Muslim ban, as many of Trump’s critics called it — prompted outrage among liberals, with thousands of activists rushing to airports to protest and provide legal aid to arriving travelers ensnared in the measure. Within hours, the U.S. government faced a flurry of lawsuits across the country seeking to halt Trump’s order, which fulfilled a campaign promise to take decisive action against what Trump cast as the dangers of terrorism by Muslim migrants.
With the Justice Department largely devoid of Senate-confirmed appointees due to the transition, Yates had what she called “ultimate responsibility” over the government’s defense in the pile of lawsuits.
The 27-year DOJ veteran refused to defend the executive order. She alluded to Trump’s anti-Muslim campaign-trail rhetoric and declared that she was “not convinced” the order was legal.
“I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right,” Yates wrote.
Her move set off a late-night scramble by fledgling White House Counsel Don McGahn to find someone at the department willing to defend Trump’s order. Eventually, the Obama-appointed U.S. attorney in Alexandria, Virginia, Dana Boente, got the call.
“They reached out to me and asked if I would,” said Boente, who had held various positions at DOJ for more than three decades. “I just thought … if there’s a defense that can be presented, it’s our duty to defend it.”
That night, Trump fired Yates and named Boente as acting AG. The White House declared that Yates had “betrayed the Department of Justice.”
It was a searing episode for many Trump lawyers — a reminder that longtime officials who had served both Republican and Democratic administrations could not be counted on to carry out Trump’s most polarizing policies and that an agency’s acting leadership can complicate the incoming administration’s early days.
Law narrows acting AG choices
Trump can’t name anyone he likes as acting attorney general. Under a 1998 law, the Vacancies Reform Act, he can choose from two pools. One consists of any Senate-confirmed appointee anywhere in the executive branch. The other encompasses anyone who has worked at the Justice Department for 90 days in the year preceding the vacancy while paid at the GS-15 level or higher — a salary of roughly $164,000 in the Washington area.
“Trump 2.0 could … find Republican commissioners and board members at, say, the Securities and Exchange Commission, and they will qualify, I believe, under the Vacancies Act,” Stanford Law Professor Anne Joseph O’Connell said. “Now, the Vacancies Act has never been used that way.”
Of course, there won’t be many Trump-appointed, Senate-confirmed officials in government at the time he is sworn in next January if he wins. Most of his appointees from his first term resigned shortly before or after he left office four years ago. There’s a much larger number of highly paid, career Justice Department employees, but it’s unclear whether a battle-scarred president wary of the “deep state” can be persuaded that a DOJ lifer would demonstrate the loyalty Trump expects.
“I would think he’s going to be looking for people he’s guaranteed to be a loyalist,” Boente said, predicting a challenge to find people who will satisfy Trump. “It’s hard to imagine, given what they would like to do, how they’ll accomplish that task.”
A few plausible candidates
Some names of potential acting AGs are already circulating among Republicans both friendly and hostile to Trump. Some are viewed as Trump allies, while others are seen as robust defenders of executive power who would fiercely defend any president’s agenda in court.
One possibility: Federal Trade Commission member Andrew Ferguson. Technically a Biden appointee, Ferguson was confirmed by the Senate earlier this year to a Republican seat on the FTC. He’s got a stellar GOP resume, having clerked for Thomas at the Supreme Court, served as solicitor general of Virginia and worked as nominations counsel to Sen. Lindsey Graham (R-S.C.) during the tumultuous confirmation hearings for Justice Brett Kavanaugh.
And Ferguson, 47, may have an extra in with Trump. The FTC official says he’s “super close” to confrontational GOP lawyer and Trump supporter Mike Davis, whom Trump has publicly promised a top job, but who doesn’t seem legally eligible to serve as acting AG at the outset of the administration.
Ferguson also has some potential drawbacks: He’s never worked at the Justice Department, and he spent two years as chief counsel to one of Trump’s least favorite GOP politicians, Sen. Mitch McConnell.
Installing someone from another agency, like Ferguson, could raise legal questions about the “germaneness” of their current job to the acting one, but those probably wouldn’t be resolved by courts if the official remained in the acting post for only a few weeks, O’Connell said.
Another contender: Deputy Solicitor General Curtis Gannon. A law clerk to the late Justice Antonin Scalia, Gannon joined the Justice Department’s solicitor general’s office in 2007. When Trump took office in 2017, he tapped Gannon to become acting head of Justice’s prestigious Office of Legal Counsel. In that role, he reviewed early Trump executive orders and signed off on the controversial travel ban that Yates refused to defend.
“Curtis is the most true-to-the-Constitution person I know, in the sense that if the president tells them to do something that is legal, he will do it,” said one DOJ Trump appointee, who was granted anonymity to speak on sensitive personnel issues.
Gannon, 51, was clearly trusted by Trump’s team four years ago and has ample DOJ experience, but it’s not clear whether those things will help or hinder him in Trump’s eyes this time.
A third possibility: Take the route Trump traveled after Yates rebuffed him in 2017 and appoint a sitting U.S. attorney as acting AG. Trump and his aides clearly wouldn’t be interested in most of Biden’s appointees, but some U.S. attorneys are career officials, and a few are holdovers from the Trump era.
One option among this group: the U.S. attorney in Birmingham, Alabama, Prim Escalona, 45. Attorney General Bill Barr tapped Escalona to fill a vacancy there in July 2020. She has a stalwart GOP resume, including stints in Justice’s Office of Legislative Affairs and Office of Legal Policy and as a law clerk to prominent conservative appeals court judge William Pryor Jr.
“I wouldn’t pick Prim if you’re trying to, like, do shenanigans,” the same Trump DOJ appointee said.
Escalona also has demonstrated an independent streak at times: Her signature is absent from a suit the Justice Department filed last month challenging Alabama’s voter purge policies. By contrast, the two U.S. attorneys in Virginia signed onto a similar suit targeting that state’s voter roll clean-up.
Biden never nominated anyone to replace Escalona — or about one-fifth of the country’s 93 U.S. attorney posts. Why? In almost all those instances, the lack of a nomination appears to be due to a standoff between Biden and the Republican senators in those states, who have the power to effectively veto any nominee under the Senate Judiciary Committee’s so-called “blue slip” practice.
A somewhat edgy potential pick for the acting AG slot is Department of Homeland Security Inspector General Joseph Cuffari, 64. Trump nominated him for the job in 2018, and he was confirmed the following year. Biden allowed him to stay in the post, but Cuffari has become a thorn in the side of the current administration by issuing reports critical of Biden’s immigration enforcement.
Cuffari’s tenure as DHS’ in-house watchdog has been rocky, and a panel of other inspectors general recently urged Biden to consider dismissing him over alleged abuse of taxpayer resources and allegedly misleading the Senate about his qualifications.
Democratic lawmakers have called outright for his firing, but if Biden doesn’t take that step before leaving office, Cuffari would be eligible to serve as Trump’s acting AG. One major drawback: He doesn’t have a law degree and lacks the background as a lawyer that all confirmed attorneys general have had.
Ferguson, Gannon, Escalona and Cuffari, or their spokespeople, did not respond to requests for comment about their willingness to serve as acting AG.
Can Trump speed up the Senate?
One way for Trump and his team to minimize any potential resistance to his policy moves from inside the Justice Department would be to lean on the Senate to act with unusual speed to confirm whomever Trump picks as AG.
The Senate typically takes its time confirming Cabinet nominees. After Trump took office in January 2017, the Senate waited 19 days to confirm Sessions as attorney general. The current AG, Merrick Garland, was not confirmed until March 10, 2021. President Bill Clinton’s nominee, Janet Reno, was confirmed on March 11, 1993, following the withdrawal of another candidate.
Obama’s AG, Eric Holder, and President George W. Bush’s first AG, Sen. John Ashcroft of Missouri, each took about 11 days to get approval from the Senate.
The fastest AG confirmation following a change of party control at the White House in recent decades came in 1981, when William French Smith was confirmed just two days after President Ronald Reagan’s inauguration and took office the day after getting the nod from the Senate.
Republicans are favored to take control of the Senate next year and, the stronger Trump’s victory, the more likely that Republicans hold a bigger majority. The size of a GOP majority could be crucial: A margin of several seats or more might allow Trump to nominate a more controversial pick and allow him to get his choice confirmed quickly.
“There’s always an acting person, right?” Trump transition chief Howard Lutnick said Wednesday on CNN, adding that he doesn’t expect such interim leaders to have to stick around for long. “They’re going to be confirmed reasonably quickly. … If Donald Trump is elected president, he will have a majority in the Senate. He’ll be able to get people confirmed.”
The Senate can — and often does — conduct some Cabinet confirmation hearings in the first few weeks of January, before the formal nomination that can only come after a president takes office on Jan. 20. But absent major changes to Senate rules, a vote can’t be called immediately on Inauguration Day. So an acting official becomes a necessity due to some inevitable delay in confirming an attorney general.
During his recent appearance in Georgia, Vance emphasized that Trump’s transition team understands the vital importance of the AG. “That’s one of the things … we’re thinking about,” the VP nominee said.
Despite Vance’s comments, Trump might be comfortable with an acting AG for some time. He often relied on such temporary appointments during his first term.
Roughly two years into Trump’s presidency, more than a quarter of his Cabinet was serving in an acting capacity due to resignations and Senate delays. Trump seemed to relish the ability to snap his fingers and install a new chief to run an agency. He even did it at the Justice Department: When Sessions resigned in the fall of 2018, Trump elevated Matthew Whitaker from the department’s chief of staff to acting attorney general. He served in that role for three months before Barr was confirmed.