Wheeler, Proctor steer clear of legal challenges facing other U.S. Attorney appointees

IL file photo

As Indiana’s Northern and Southern District U.S. Attorney nominees wait for a full Senate confirmation vote, the districts’ acting U.S. attorneys have managed to avoid the recent legal controversies that have surrounded some other Trump Administration-appointed federal prosecutors.

Doria Lynch, a spokesperson for the U.S. District Court for the Southern District of Indiana, told The Indiana Lawyer in a email that the district’s judges had voted to appoint Tom Wheeler, pursuant to Title 28, United States Code, Section 546(d), in a. Nov.7 order signed by Chief Judge James Sweeney II.

Wheeler had been serving as the Southern District’s interim U.S. Attorney since June.

Wheeler also confirmed the appointment order earlier this month by the court’s judges.

“That order will last until the Senate acts,” Wheeler said, referring to the full Senate confirmation vote on his nomination.

U.S. attorneys are typically nominated by the president and then confirmed by the Senate. Attorneys general do have the authority to name an interim U.S. attorney who can serve for 120 days, and district judges can reappoint them.

Wheeler said there were not any legal issues regarding his initial appointment or reappointment by the district’s judges like those attached to some U.S. attorneys, like Lindsey Halligan.

Halligan was named interim U.S. attorney for the Eastern District of Virginia in September.

Earlier this week, a pair of rulings by a federal judge held that Lindsey Halligan was illegally appointed interim U.S. attorney in that district.

According to the Associated Press, lawyers for indicted former FBI Director James Comey and New York Attorney Letitia James argued that the law empowers only one such temporary appointment and that, after that, federal judges in the district have say over who fills the vacancy until a Senate-confirmed U.S. attorney can be installed.

Since Halligan replaced an interim U.S. attorney who had already served for more than 120 days, the lawyers said, her appointment was invalid and the indictments she secured must be dismissed as a result.

The Justice Department announced it would appeal the rulings.

In Indiana’s Northern District, Adam Mildred has continued in his role as deputy prosecuting attorney in Allen County while he awaits confirmation by the Senate for the district’s U.S. attorney post.

Trump named M. Scott Proctor as Acting U.S. Attorney in Indiana’s Northern District at the same time he announced Mildred’s nomination.

Proctor told The Lawyer he would remain in his position until Mildred is approved by the Senate.

“It’s not the interim (appointment), where it’s a 120 day clock,” Proctor said.

According to Bloomberg Law, acting US attorneys, are appointed by the president under a separate law known as the Federal Vacancies Reform Act. This permits officials to serve for 210 days after the vacancy begins, or for 300 days during a presidential transition period, but limits who is eligible to serve in that capacity.

The vacancy law also prevents an official from serving as acting if they are also the nominee for the seat, with an exception for officials who spent at least 90 days in the last year as first assistant in that office.

The 210-day clock can restart if a first or second nomination for the seat is rejected by the Senate, theoretically allowing acting US attorneys to serve well over a year.

U.S. attorneys are typically nominated by the president and then confirmed by the Senate. Attorneys general do have the authority to name an interim U.S. attorney who can serve for 120 days, and district judges can reappoint them.

Wheeler said he is hopeful he will receive a confirmation vote in the Senate before the end of the year.

He said he has enjoyed working with the courts and was proud of his staff that came in and worked without pay during the 43-day federal government shutdown.

Wheeler and Mildred each got favorable votes from the Senate Judiciary Committee.

Mildred’s nomination got a 12-10 vote from the committee Oct. 16, while Wheeler advanced Oct. 9 by the same vote total.

Wheeler and Mildred were nominated by President Donald Trump in June to serve as Indiana’s Southern and Northern District U.S. Attorneys, respectively.