DOJ Extends US Attorney on Border After Judicial Criticism (1)

The Trump administration converted New Mexico’s interim US attorney to “acting” as his temporary term was expiring, the latest chief prosecutor—and first on the border—to sidestep traditional judiciary approval.

New Mexico’s top prosecutor Ryan Ellison, who’s had public confrontations with the federal bench over his district’s mass arrests of migrants in a newly created military zone, had his term extended under the Vacancies Reform Act this week, a Justice Department spokesperson confirmed.

This makes Ellison the fifth known Trump US attorney to receive the special appointment as a workaround to the customary US district court approval of non-Senate confirmed chief prosecutors who’ve exhausted their 120-day interim period.

New Mexico’s Democratic Sens. Martin Heinrich and Ben Ray Luján said that Ellison, who hasn’t been nominated by the White House, has submitted his paperwork to them as part of their screening process before a potential Trump US attorney nomination.

In a joint statement, the senators said they’ll review his application but are “extremely concerned by this administration’s continuing willingness to trample the role of the Judiciary and Congress” through Ellison’s acting appointment.

Ellison issued his own statement later Friday that sought to downplay the tension.

“I applaud New Mexico’s federal district judges for declining to appoint someone other than the Trump Administration’s choice to lead the United States Attorney’s Office as they had the discretion to do at the end of my interim appointment,” the acting US attorney said.

Yet in prior administrations, judges would appoint the interim US attorney in the vast majority of these situations. It’s only in recent weeks that silence, rather than expressing confidence in controversial prosecutors’ qualifications, has started to become the norm on the bench.

The Justice Department and the chief federal trial court judge in New Mexico didn’t comment on Ellison’s judicial consideration. But a court appointment is preferable for any administration’s US attorneys—especially in a state with opposing party senators who have the ability to block nominees—because it keeps the prosecutors on indefinitely.

Judicial Pushback

Deputy Attorney General Todd Blanche on Aug. 11 noted on X the US attorneys who have been receiving court approval lately. But the Ellison development shows that bypassing judges is still a common occurrence with Trump’s chief prosecutors—most recently for Los Angeles’s Bill Essayli and Nevada’s Sigal Chattah.

Unlike those acting prosecutors, whose backgrounds in politics invited criticism, Ellison spent the prior six years before his April 18 interim US attorney appointment as a line prosecutor in the same New Mexico office he now leads.

But Ellison’s implementation of the Trump administration’s aggressive deportation agenda in a state along the Mexican border has subjected him and his office to judicial rebuke.

After the Trump administration’s Defense Department created a 170-square-mile military zone near the border in New Mexico, Ellison’s office has been charging hundreds of undocumented immigrants with misdemeanor trespassing violations. This allowed the office to apprehend individuals who’d eventually be scheduled for deportation.

In response, the state’s chief federal magistrate judge requested briefing on the legality of this practice, given concerns that defendants lacked knowledge that they’d committed a crime. Ellison then filed an objection challenging the judge’s authority.

Ellison called it an “extraordinary departure” from the constitution for Chief Magistrate Judge Gregory B. Wormuth to have solicited his office’s input. The filing, which is signed only by Ellison, urged Wormuth to “correct course.”

Wormuth ended up dismissing the trespassing charges in more than 100 cases several days later. In those May dismissals, he dropped a footnote describing Ellison’s objection as a “histrionic filing” with “remarkable tone and content.”

Then in July, New Mexico US District Court Judge Margaret Strickland dismissed with prejudice the same misdemeanor trespassing charges for another migrant defendant arrested in the new Trump military zone—violations of security regulations and for entering military property.

She held Ellison’s office responsible for imperiling the Fifth and Sixth Amendment rights of detained immigrants by deporting them while their trespassing charges were still pending.

“Despite this Court’s clear warnings,” the New Mexico US attorney’s office “repeatedly made the decision, in this case and hundreds of others, not to take measures it has within its power to ensure” that the defendant, Luis Jesus Escobedo-Molina, “could remain in the United States to face the charges against him, or lawfully return to the United States to stand trial,” Strickland said in her July 11 order.

Nomination Prospects

It’s not clear if court statements such as that one were the reason for the bench’s public silence thus far on Ellison’s appointment. The chambers of Chief District Judge Kenneth Gonzales, who was previously an Obama-appointed US attorney in New Mexico, didn’t respond to a request for comment, and the district court hasn’t posted an order on Ellison’s status.

Also left unaddressed is whether the White House will eventually try to nominate Ellison for the US attorney post. Sens. Heinrich and Luján suggested that if he were, they might withhold the blue slip to block his confirmation.

“We urge the Senate Judiciary Committee Chair and Ranking Member to continue to enforce the blue slip process so that we can do our best to ensure fair, impartial, and independent federal prosecutions in New Mexico,” they said in their statement.

Ellison said later Friday: “I thank New Mexico’s U.S. Senators for their commitment to reviewing my qualifications and I look forward to working with public servants of all political stripes to combat crime in New Mexico.”

A spokesman for Heinrich told Bloomberg Law that Ellison didn’t submit his screening paperwork to the senators until August 7, “after substantial prodding by the Senators’ staff.”

Under the Vacancies Reform Act, Ellison can now remain in place for at least the next 210 days.