NEW YORK — President Donald Trump is installing his pick for the top federal prosecutor job in Manhattan on an interim basis despite Sen. Chuck Schumer’s effort to block the nominee’s confirmation in the Senate.
And in the long term, Trump may rely on a little-known legal provision to try to keep his nominee, Jay Clayton, in the influential prosecutorial post for the duration of Trump’s second term without ever confronting the confirmation process.
The playbook: First, appoint Clayton as interim U.S. attorney, allowing him to fill the role for up to four months without Senate confirmation. Then, when that window expires, count on the federal judges in Manhattan to appoint Clayton to the position indefinitely.
Trump has already implemented the first step. Earlier this week, he said in a social media post that Clayton, the former chair of the Securities and Exchange Commission, would become the interim head of the Manhattan prosecutor’s office, known as the Southern District of New York.
Clayton is expected to begin work on Tuesday, according to a person familiar with the matter.
Trump’s announcement came hours after Schumer said he would block Clayton’s nomination to the permanent position. Under the Senate’s “blue slip” policy, Schumer has the ability to block U.S. attorney nominees in his home state of New York, and Schumer said he was taking that step for Clayton and one other U.S. attorney nominee because Trump “has no fidelity to the law.”
The tussle over Clayton’s nomination comes at a critical moment for the Southern District, where Trump’s Justice Department is striving to exert control and rein in the office sometimes nicknamed the “Sovereign District.” Perhaps the most powerful prosecutorial office outside Washington, SDNY oversees Wall Street and prosecutes some of the biggest white-collar and terrorism cases.
It clashed with Justice Department officials shortly after Trump took office, when DOJ’s acting No. 2 official ordered SDNY prosecutors to drop their criminal case against New York City Mayor Eric Adams. Several prominent prosecutors — in both New York and Washington — resigned in protest.
Clayton, who led the SEC during Trump’s first term, has never worked as a prosecutor, and has been viewed with some skepticism within the SDNY office as prosecutors there seek to navigate a Justice Department that appears to want them on a short leash.
By slotting Clayton in as the office’s interim chief, Trump is able to circumvent the immediate procedural hurdle posed by Schumer’s block.
By law, Clayton will be allowed to serve as interim U.S. attorney for 120 days. If the White House doesn’t nominate anyone else by the end of that interim period, the judges of the federal district court in Manhattan could vote to appoint him to remain in the job. He could then serve until the Senate confirmed a nominee — and if Trump wanted Clayton to remain in the job, the president could simply not nominate anyone else.
Jennifer Selin, an associate professor at Arizona State University’s law school who co-authored a paper on U.S. attorney appointment mechanisms, said Trump’s use of the interim process is a savvy strategy.
“I think that this is an example of how prepared they are in terms of really understanding the law and how to use the law to their advantage or push the boundaries of the law to their advantage, depending on your viewpoint,” she said.
In fact, the Clayton situation may prove identical to what happened in the Southern District during Trump’s first term. Then-Attorney General Jeff Sessions initially appointed Geoffrey Berman as U.S. attorney on an interim basis for a 120-day term after both New York senators raised concerns about Berman’s ties to Trump. When the end of Berman’s interim term came without a new White House nominee, the judges appointed Berman to stay in the job.
In 2020, Trump tried to oust Berman and replace him with a fresh face: Jay Clayton.
Clayton, however, didn’t end up getting the job at the time because Berman refused to leave unless his then-deputy was named as his replacement.
This time around, there is a risk for Trump if he attempts to bypass the Senate confirmation process for Clayton: The district court judges might not play along.
Of the judges who sit on the district court in Manhattan, the overwhelming majority were appointed by Democratic presidents. If Clayton’s interim period ends without a nominee, the judges could vote to put anyone in the job on a permanent basis. And if they did, the Trump administration might not have legal authority to remove the judges’ choice without getting a nominee confirmed by the Senate, according to Selin.
But judges likely would be hesitant to spark a clash with the executive branch by appointing a U.S. attorney whom the president did not want. If it came down to a court appointment, keeping Clayton in the position would be the most natural choice to minimize disruption.
And if the judges appeared unwilling to appoint Clayton, Trump could appoint a new interim U.S. attorney or use other procedures to install a person of his choice on a temporary basis.