LAS VEGAS (KTNV) — As Nevada's acting U.S. attorney Sigal Chattah fights to keep her job, other lawyers in similar posts across the country are facing the same challenges.
A federal judge ruled in September that Chattah was disqualified from serving as Nevada's top federal prosecutor, discounting a circuitous series of maneuvers to keep her in the job after a temporary appointment expired.
WATCH | Chattah not the only disputed U.S. attorney
The ruling came after federal public defenders in three cases approved by Chattah challenged her authority to oversee prosecutions.
The matter is now on appeal to the Ninth U.S. Circuit Court of Appeals, with hearings expected in the new year.
Chattah was appointed in late March as interim U.S. attorney, a posting that is limited under federal law to 120 days.
She has never been formally nominated for the position, which requires approval by the U.S. Senate. Nevada's U.S. senators — Catherine Cortez Masto and Jacky Rosen, both Democrats — vowed to oppose her if she came before the Senate.
Chattah, a fiery partisan, formerly served as the Republican national committeewoman from Nevada. She's an outspoken presence on social media, posting her views during the recent Nevada Legislature special session in Carson City and attacking both Nevada senators.
She was also caught in a leaked conversation telling a former friend that Nevada Attorney General Aaron Ford, who is Black, should be "hanging from a f—— crane." She denied the comment had racial overtones.
The day before her interim appointment was to expire, Chattah resigned, was hired as a special attorney in the Justice Department, was designated as the first assistant U.S. attorney for Nevada, and in that post was appointed as acting U.S. attorney. (The previous first assistant U.S. attorney was promoted.)
That's similar to what happened in New Jersey, the Central District of California, New Mexico, the Northern District of New York and the Eastern District of Virginia.
In most of those cases, challenges have produced rulings from District Court judges saying the incumbent was improperly appointed. In New Jersey, the case went to the Third District Court of Appeals, which upheld the finding, prompting Alina Habba to resign.
Former Nevada U.S. attorney Greg Brower, now an attorney at the firm Brownstein, Hyatt, Farber, Schreck, said the trend is unmistakable.
"I think what is developing here is a consensus among the federal judges looking at this that the approach you've described is a legally flawed one," he said. "And I suspect that the more judges that look at this, the more that will be the consensus."
In Nevada, the case is being argued before the Ninth Circuit. In court papers, Justice Department lawyers argue that Chattah can be appointed under the law, because the first assistant automatically becomes the acting U.S. attorney when the top job is vacant.
Not only that, they say, but Chattah is acting under authority granted by Attorney General Pam Bondi, which allows her to supervise prosecutions and the other business of the office.
As a result, they say, the criminal cases should proceed.
The U.S. attorney's office in Nevada declined to comment to Channel 13 about the ongoing case, referring a report to the department's legal pleadings.
The federal public defenders, however, contend that because Chattah was not the first assistant U.S attorney when the top job became vacant in January, she can't later be named to that position in order to assume the duties of U.S. attorney.
If that were true, the president would simply name first assistants around the country whenever there was a vacancy in a U.S. attorney's office, and never have to put a nominee before the Senate for confirmation.
They say the law limits people eligible to serve as acting U.S attorneys to a very limited list of people, and that Chattah is not on that list. As a result, she's serving unlawfully, and her actions are invalid. They've asked the Ninth Circuit to toss out the criminal cases against their clients.
The potential to compromise prosecutions is one of the most concerning aspects of the convoluted way Chattah and others have been appointed, Brower says.
"We're talking about real cases, with real victims who want to see, when the evidence points to a defendant who committed the crime, wants to see that person prosecuted fairly," he said. "They want to see a jury be able to hear the evidence and decide guilt and these questions with respect to the legitimacy of the indictments on the front end of these cases just isn't good for [Justice Department] efforts."
There is an alternative: The Trump administration could simply nominate a candidate who could get Senate approval, the way Brower did when he was nominated by then-President George W. Bush.
"I'd like to think that there is a competent, ethical Republican lawyer in each and every one of the 93 federal districts around the country who could win Senate confirmation and perform competently as the U.S. attorney in their district," he said.
Meanwhile, the cases will wind through the courts, and may ultimately have to be decided by the U.S. Supreme Court, which has taken an expansive view of executive power in recent years.
Before that, however, Brower says the U.S. Senate may become more aggressive about asserting its role in the process, especially since confirmation of administration officials now only requires a simple majority.
"I'd like to think that the Senate, Republicans and Democrats in the Senate, will increasingly become frustrated with the status quo, because, again, it's the Senate's prerogative of advice and consent that is, in part, being ignored here, and it just doesn't seen to be sustainable to me."
Do you have a question about politics in Nevada? Ask Steve by emailing Steve.Sebelius@ktnv.com.
