Todd Gilbert, the interim U.S. attorney for the Western District of Virginia, resigned from his post last week, before he was confirmed by the U.S. Senate for the role. Reporting by The Roanoke Times and Virginia Scope said the reason was political: Gilbert clashed with the Trump White House over a personnel decision. So, is it normal for a presidential administration to pressure a U.S. attorney’s office, regarding who is hired and who is fired?
“Ultimately, the attorney general and the White House, they call the shots with us, but I’m not aware of any input that came to me, that I was advised of when I was in the U.S. attorney’s office considering who to hire,” said Tony Giorno, who had worked in the Western District office for nearly three decades.
“They didn’t micromanage what we did here, but they did give us broad guidance, as it was called, from the Attorney General, and that was their prerogative,” he added.
Giorno had served in the U.S. attorney’s office from 1995 until 2022, under three Democratic presidential administrations and two Republican administrations. His title over those roughly 28 years spanned assistant, first assistant and acting U.S. attorney. He added that he did not have any knowledge about why Gilbert resigned from his role as U.S. attorney.
According to reporting by The Roanoke Times, Gilbert was given a choice to resign or be fired from his post as U.S. attorney. The demand came after he clashed with the Trump administration over the role of Zachary Lee, the first assistant U.S. attorney who served under Chris Kavanaugh, an appointee of then-President Joe Biden.
Trump officials had pushed Gilbert to replace Lee but, when Gilbert resisted, the Department of Justice appointed Robert Tracci — who had been in the running for the role as U.S. attorney — to replace Lee. In turn, Gilbert created a new position for Lee as senior counsel and executive assistant U.S. attorney, which angered the White House and led to Gilbert’s ultimatum, according to The Roanoke Times report.
“If that’s the reason that Gilbert stepped down, that’s disturbing,” said David Richards, chair of the International Relations and Political Science Department at the University of Lynchburg.
“It’s not really clear what is going on. It’s not good procedure to have somebody be appointed and then a month later step down. That doesn’t bode well for a smooth process there in that office,” he added. “This whole thing has been kind of strange from day one.”
Tracci, who had been first assistant U.S. attorney, stepped into the role of acting U.S. attorney on Aug. 20 after Gilbert resigned.
Is it normal for a president to influence personnel and work in a U.S. attorney’s office?
The power to appoint a new U.S. attorney belongs to President Donald Trump, subject to Senate confirmation, but what about personnel in the office?
John Edwards, now 81, was appointed by former Democratic President Jimmy Carter in 1980 to be the U.S. attorney for the Western District of Virginia.
Edwards said he never felt any pressure from either White House regarding personnel or the cases that the office pursued. When former Republican President Ronald Reagan entered into office in 1981, he told Edwards that he could stay on as U.S. attorney until his successor was sworn in.
“Nobody said, ‘Hey, you gotta go,’” Edwards said. He pointed out that, when Trump was first sworn into office in 2017, his administration asked the 46 U.S. attorneys appointed by his predecessor, former President Barack Obama, to resign.
“That’s really unusual,” Edwards said. “Why do that? The job is not a political job…. It’s a law enforcement job. The U.S. attorney is in court any time the United States of America is in court – for whatever reason – collecting debts, prosecuting people for tax evasion, or you name it.”
It’s a different story, regarding White House influence over the cases pursued by a U.S. attorney’s office and how the work is done.
“With each administration as they change, they have different priorities. The president appoints the attorney general … they talk about what their priorities are,” Giorno said.
He pointed to John Ashcroft, the attorney general under Republican President George W. Bush, as an example. When Ashcroft entered into office in 2001, he issued a directive to U.S. attorneys across the country to charge alleged criminals with the highest provable offense.
“He basically said, ‘If the evidence is there and the law is there, then you should charge the highest provable offense,’ and so, that’s what we did,” Giorno said.
And under Eric Holder, who was attorney general under Democratic President Barack Obama from 2009-2015, a new, “smart-on-crime” directive was issued.
“He issued something called the Holder Memo,” Giorno said. “It basically tells us how we’re supposed to implement certain things and that dealt with mandatory minimums in gun cases and in drug cases.”
Gilbert’s gone. What happens now?
It’s traditional for senators to do the initial vetting of candidates for an open U.S. attorney seat in their state, even if they’re from the opposite party.
Months ago, Virginia’s two Democratic U.S. senators, Mark Warner and Tim Kaine, referred Gilbert, former speaker of the House of Delegates and then-House minority leader, as a candidate for the role to the White House, along with Tracci. Tracci had worked as the commonwealth’s attorney in Albemarle County, and in the state attorney general’s office.
It’s unclear in the immediate aftermath of the shakeup if the White House will now nominate Tracci or go a different route.
It’s not required for the president to have the home-state senator’s approval, in this case Warner and Kaine, of whomever is nominated by the White House, but it is considered normal protocol.
Spokespersons for both Warner’s and Kaine’s offices said the senators were surprised to hear about Gilbert’s resignation.
“After a thorough interview process that included the input of a bipartisan panel of former Virginia U.S. attorneys and other well-respected members of the Virginia legal community, the senators recommended two candidates. Todd Gilbert was among them because he was exceptionally qualified to execute the duties of this role,” both Warner’s and Kaine’s spokespersons said.
The three Republican congressmen who represent territory covered by the Western District — Ben Cline of Botetourt County, Morgan Griffith of Salem and John McGuire of Goochland County — initiated their own nominating process before Trump formally nominated Gilbert, but did not disclose who they recommended to the White House. House members are primarily advisory in this role, however, as the Senate is the confirming body.
Gilbert had not yet been confirmed by the U.S. Senate but was working in the role as interim after he was nominated by Trump on July 1 to be the next top federal prosecutor for the western half of the state.
Gilbert left his post as House minority leader and was sworn in on July 14. He resigned from his post as U.S. attorney on Aug. 20.
