President Donald Trump was already struggling to fill hundreds of top legal jobs throughout the federal government.
Over the past two weeks, that task became exponentially more difficult, according to top GOP lawyers.
Trump’s firing of FBI Director James Comey and the subsequent string of allegations – from Trump demanding a pledge of loyalty from Comey and pressuring him to ease off a probe into his former aide, to revelations that Trump trashed Comey as a “nut job” in an Oval Office meeting with top Russian officials—have narrowed the ranks of people willing to serve.
“They were dealing with a pool that had already shrunk and, now, of course, some people will be avoiding it like the plague,” said one well-connected GOP lawyer who held a top-level post in President George W. Bush’s administration and asked not to be named. “The lesser-known folks are wondering if they’re going to take a huge reputational hit if the president of the United States starts tweeting about them. … There’s definitely some poisoning of the well going on in terms of who would take a job at this point.”
From the outset, the Trump administration was facing a limited pool of candidates for senior positions. Many GOP lawyers and former officials signed “Never Trump” pledges during the campaign and never seriously considered accepting a Trump appointment. Others did, but found themselves essentially blacklisted because of blog posts or other statements made about Trump during the campaign.
Trump still has to fill senior Department of Justice roles and the 93 U.S. attorney posts around the country—a task complicated by his decision, in March, to demand the immediate resignation of all remaining Obama-era appointees without a bench of replacements ready to go. Scores of seats on the federal bench also remain open.
Further complicating the search is the growing demand from the president and many of his top advisers for personal attorneys to advise them as the federal probe expands into Russian meddling in the 2016 presidential election, including contacts with Trump friends and campaign staff.
The process has already presented some conflict of interest issues. Government lawyers typically have to recuse from inquiries involving their former firm’s clients for one year—and Trump’s decision to tap one of his personal lawyers, Marc Kasowitz, to oversee his outside lawyers working on the Russia-related probes appears to have contributed to former senator and Democratic vice-presidential nominee Joe Lieberman’s decision to step out of the running for the FBI job.
Another lawyer being seriously considered for the coveted U.S. attorney post in Manhattan, Edward McNally, is also a partner at the same New York firm. It’s unclear if the tie has affected McNally’s candidacy.
“You always see the same names coming back,” said Paul Rosenzweig, a lawyer who served in the Department of Homeland Security under President George W. Bush. “I look around at people considering going into the Trump administration and the same names come up for every open job…It’s the same six names for every open job—the people who are both qualified and willing to serve.”
Asked about the unusual vacillation and tumult in the FBI director search process, Rosenzweig said: “It certainly doesn’t help when the stated basis for firing your predecessor is that he was a ‘nut job.’”
At least half a dozen people interviewed for the FBI director job have withdrawn from consideration in recent days, including former Justice Department criminal division chief Alice Fisher, New York state Judge Michael Garcia, Sen. John Cornyn (R-Texas) and Rep. Trey Gowdy (R-S.C.).
A White House spokeswoman did not respond to requests to comment for this story, but officials have said that Trump recently decided to “broaden” the search process for the FBI director post.
Some contenders for top jobs have been particularly distressed by the travails of Deputy Attorney General Rod Rosenstein, who is extremely well-regarded in law enforcement and legal circles, but whose reputation has been bruised by his involvement in Trump’s firing of Comey earlier this month.
The White House initially cited a letter written by Rosenstein as the basis for the FBI chief’s abrupt dismissal, but Trump later indicated that wasn’t the real reason for the firing. Rosenstein later acknowledged that at the time he wrote the letter he already knew the president had made the decision to fire Comey.
That was enough to push at least one person in the mix for a Justice Department job to withdraw, a colleague said.
Two more names have been added—or returned–to the FBI director mix in recent days. Former Justice Department National Security Division chief Ken Wainstein and former Transportation Security Administration Director John Pistole have both held discussions about the job with top Justice Department officials in recent days, according to an official close to the process.
Both Wainstein and Pistole had been mentioned as potential contenders for the job a couple of weeks ago, but there was no indication they were being seriously considered. Now, that appears to have changed. Wainstein, a lawyer in Washington at the Cadwalader law firm, and Pistole, president of Anderson University in South Carolina, did not respond to requests for comment.
A Trump adviser involved in the selection process for legal jobs said it should not be surprising that the most elite posts often draw a limited pool of contenders.
“You’re talking about very high level jobs. All these jobs are very high level jobs,” said the adviser, who spoke on condition of anonymity. “The bottom line is there’s a small universe of people who are eligible and so naturally you are going to see repeat names appearing.”
Asked if Trump’s recent comments had scared potential candidates away, the adviser said: “I don’t get the impression that’s the case….I think: no.”
Trump has managed to install only three Senate-confirmed officials in the entire Justice Department: Attorney General Jeff Sessions, Rosenstein and Associate Attorney General Rachel Brand, who won confirmation just last week.
Nominations for four other Justice Department positions have been sent to the Senate, but the rest of the slots remain in limbo.
Trump has won confirmation of two judges: Supreme Court Justice Neil Gorsuch and 6th Circuit Judge Amul Thapar. With 129 vacancies on the federal courts, he’s formally submitted eight nominations and announced his picks for another two slots.
So far, Trump has yet to nominate a prospect for any of the 93 U.S. attorney positions nationwide, including the more than 40 Obama-appointed prosecutors forced to resign in March.
White House officials have said that a dozen or more U.S. attorney picks are in the final stages. In some instances, the announcements have been held up as the White House negotiates with senators over a package of potential nominations including the prosecutor posts as well as vacant judgeships.
“With some of these positions that are still open, it’s just there aren’t a lot of people who want those jobs, like OJP [the grant-making Office of Justice Programs] or Civil Rights,” the person close to the process said. “They’re kind of thankless jobs. You want an individual of high quality but you also got to get the job filled and they’re trying to strike that balance.”
The adviser acknowledged that the “Never Trump” phenomenon has made it a challenge to fill some senior jobs, but he disputed that the Justice Department posts were particularly affected.
“That’s been a bit of a problem for the administration, but not as much at DOJ,” the adviser said. “That’s been a very serious problem over at the State Department. A lot of the conservative foreign policy establishment were ‘Never Trumpers…’ The proportion is much higher at the State Department and the White House.”
The hiring challenges have sometimes forced the administration to drop down a tier in terms of experience, with younger candidates being considered for top jobs a decade before they would have been under a more normal situation, people close to the process said.
Still, some GOP lawyers are frustrated and perplexed by the delays in nominations, scoffing at the notion that no qualified attorneys can be found for the posts.
“There are people who’d give their eye teeth for senior DOJ positions,” said Sol Wisenberg, a deputy independent counsel in the Whitewater probe and former federal prosecutor in North Carolina and Texas. “I don’t think that’s an excuse for not filling the positions….There’s plenty of talent.”
Still, he acknowledged that some people will not want to face Senate confirmation. And potential FBI picks in particular must now realize that they are likely to be sked to pass judgment publicly on a slew of Trump’s more provocative actions.
“Anyone they pick….is going to have to go through the gauntlet in the Senate,” Wisenberg said. “I just think it’s going to be hard given how Comey left. It’s going to be a delicate process to try to get somebody through fairly quickly and without a lot of controversy. You need somebody who is really sharp.”