NEW YORK — President Donald Trump’s pick to be the top federal prosecutor in Manhattan will get to stay in the job, even though he hasn’t been confirmed by the US Senate, after a group of judges voted Monday to allow him to continue in the position.
The judges’ decision to approve Jay Clayton as the US attorney for the Southern District of New York is a victory for the Trump administration, which has resorted to unorthodox maneuvers to keep some of the president’s other nominees for US attorneys in place after they failed to advance in the Senate.
The outcome was announced in a release by Southern District Executive Edward Friedland. It said Clayton will serve as US attorney unless someone else is nominated by Trump and approved by the Senate.
Clayton, who served as chairman of the Securities and Exchange Commission between 2017 and 2020, has deep-rooted Wall Street ties and over two decades of experience at a prominent international law firm, although he never was a prosecutor before taking the position four months ago.
In a statement, Clayton said: “I am honored to continue serving the people of New York together with the talented and hardworking women and men of the Office.”
The approval came after several other US attorneys across the country who were appointed by the Trump administration were unable to gain the approval of judges in their districts.
Manhattan office has undergone turmoil
The Manhattan prosecutor’s office has undergone turmoil in recent months after several prosecutors, including then interim US Attorney Danielle Sassoon, resigned after refusing to carry out orders from the Justice Department to drop corruption charges against Mayor Eric Adams. The case was eventually dropped after prosecutors from Washington submitted a request to a judge.
Another assistant US attorney, Maurene Comey, was recently fired shortly after she handled the bulk of duties in the trial of hip-hop producer Sean “Diddy” Combs. He was acquitted of the most serious racketeering conspiracy and sex trafficking charges, though he remains jailed and awaiting sentencing for his conviction on prostitution-related charges.
Clayton has maintained a relatively low profile while heading an office of prosecutors long known for its independence from Washington.
The decision on Clayton came after judges in several other federal jurisdictions across the country rejected the person chosen by the Trump administration as US attorney, causing the administration to employ other legal maneuvers to keep its pick in place.
US attorney appointments usually face Senate approval
The administration’s appointments normally would face Senate approval, but Democratic senators in their home states can block the usual process, as several have done. That lets the appointed top prosecutor serve 120 days before the district’s federal judges decide whether the individual can remain in the post. The judges can also appoint a successor.
In the past, it was considered rare for judges to reject the appointed top prosecutor in their district, but several rejections have occurred this year.
In the Northern District of New York, which encompasses 32 counties in upstate New York and includes the cities of Albany, Binghamton and Syracuse, judges rejected the appointment of John A. Sarcone III. The administration then appointed him as the special attorney to the attorney general, enabling him to continue in his role as US attorney even though he doesn’t directly carry that title.
Lawsuit challenges appointment in New Jersey
In New Jersey, federal judges rejected the appointment of former Trump defense attorney Alina Habba, choosing an interim top federal prosecutor in the state instead. Attorney General Pam Bondi responded by firing the judges’ chosen successor and reinstalling Habba as acting US attorney.
Habba’s tenure still faces uncertainty, though, after a lawsuit challenging the legality of the administration’s move to keep her in place awaited a ruling this week by a Pennsylvania federal judge. The Justice Department says the president is entitled to name the person he wants to the position.
Unlike Clayton, who has remained relatively controversy-free in the runup to the judges’ vote, Sarcone and Habba attracted headlines during their tenures.
In June, Sarcone said he was attacked by a knife-wielding man from El Salvador outside an Albany hotel. The man, who lacked documentation to be in the country, was initially charged with attempted second-degree murder, but prosecutors downgraded the charge after reviewing video surveillance footage and the man pleaded guilty to menacing.
Habba brought a rare federal criminal case against a sitting member of Congress for allegations other than fraud or corruption when Rep. LaMonica McIver was charged with assault for allegedly making physical contact with law enforcement officials when Newark’s mayor was arrested during a chaotic visit to a privately operated immigration detention center. McIver denied assaulting anyone.
Habba has also launched an investigation into New Jersey’s Democratic governor, Phil Murphy, and attorney general, Matt Platkin, over the state’s directive barring local law enforcement from cooperating with federal agents conducting immigration enforcement.
The administration has run into similar troubles elsewhere in the country.
Two others who have been able to remain serving in roles as top federal prosecutors without approval from the Senate or judges in their districts are Bilal “Bill” Essayli in Los Angeles and Sigal Chattah in Nevada.
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