The Senate’s bid to confirm a federal prosecutor nominee without traditional credentials who was outside the Capitol on Jan. 6 shows Republicans’ increased willingness to back US attorney picks seen as loyal to President Donald Trump, legal scholars say.
The Senate Judiciary Committee on Thursday voted along party lines to advance the nomination of Darin Smith, who has no previous criminal or federal litigation experience, for a four-year term as US attorney for the District of Wyoming.
The committee previously approved Smith in December, but his nomination was automatically sent back to the White House with other nominees at the end of the year, triggering the need for another vote.
Senate Democrats have blasted Smith’s lack of experience, as well as his presence outside the Capitol on Jan. 6, 2021, and comments he made accusing law enforcement of “massive incompetence” and “entrapment.” Smith, a former state senator, told Wyoming media he tried to discourage members of the crowd outside from breaching barricades as US lawmakers worked to certify the 2020 election results.
Smith’s legal practice has focused on estate planning and business law and he’s never “served as trial counsel in cases taken to verdict, judgment, or final decision before a court of record or an administrative law judge,” he wrote in answers to the Judiciary Committee’s standard questionnaire to nominees.
“How can a person like this be taken seriously to be the US attorney in the state of Wyoming?” Senate Judiciary Committee Ranking Member
Smith’s home-state senators, both Republicans, have endorsed him as fully qualified. GOP support for Smith could encourage the administration to nominate more individuals with less traditional backgrounds to serve as top prosecutors in lower-profile judicial districts, law professors and former prosecutors said.
Smith’s “background gives assurance only that he is politically aligned with, and will be loyal to, President Trump,” said Bruce Green, director of Fordham School of Law’s Louis Stein Center for Law and Ethics and a former federal prosecutor.
“From the president’s perspective, that seems to be the only necessary qualification, and that’s good enough for Republicans in the Senate who will vote to confirm him,” Green said.
Smith, who was named interim head of the office in August, is an outlier in the Trump administration’s US attorney nomination trends. Trump has largely selected US attorney picks with prior prosecutorial experience for roles in states represented by Republicans in the Senate, while opting for those with less experience in interim and acting roles in states represented by Democrats.
Smith’s Background
Smith, who secured an endorsement from Trump ahead of his state senate win in 2024, seeks to continue overseeing federal criminal prosecutions for Wyoming’s more than 580,000 residents and parts of Yellowstone National Park.
For Democrats and legal scholars, Smith’s anticipated confirmation sends a signal for what’s expected of US attorney nominees.
“There’s got to be some standard of qualification to give this kind of power to an individual that has no background, none whatsoever, when it comes to criminal or federal court experience,” Durbin said at a Dec. 11 markup where the panel first voted to advance Smith’s nomination.
In addition to his private legal practice, Smith’s career also included roles at Family Research Council, an evangelical advocacy group that describes its mission as “championing faith, family, and freedom in public policy.”
Sharon Wilkinson, executive director of the Wyoming State Bar Association, said in an email that Smith was admitted to practice law in the state in 2000, and that he’s “a member in good standing.” Wilkinson didn’t respond to a request for further comment.
It’s unclear whether Smith has prior experience managing staff, which former federal prosecutor Michael Romano said is a key responsibility of US attorneys.
“If you’ve never managed a legal team, it’s hard to see how you can suddenly go into a job like the one he’s nominated for,” said Romano, who served as deputy chief of the former Capitol siege section of the DC US attorney’s office.
Smith’s spokesperson, Lori Hogan, said Smith isn’t commenting on the confirmation process.
Republican Support
Republicans have deferred to Smith’s support among Wyoming’s home-state senators, which law professors say could bode well for future nominees.
Unlike districts like the Southern District of New York, where the financial industry has an interest in the background of a US attorney pick, “experience is not a job qualification” for some posts, said Stephen Gillers, a legal ethics professor at NYU School of Law.
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Tillis noted one exception. The senator opposed Ed Martin’s nomination for top prosecutor for the District of Columbia, citing the major national security cases that tend to come before that office.
Trump pulled Martin’s nomination last year amid bipartisan criticism over his defense of Jan. 6 rioters.
Smith has also come under fire for his presence outside the Capitol on Jan. 6. While Smith hasn’t been accused of wrongdoing in association with the breach, he criticized law enforcement and alleged that “Cheney and her goons” sent FBI agents to his home accusing him of being another individual at the Capitol.
The DC US attorney’s office led the Jan. 6 prosecutions, making Smith’s situation vastly different and Martin’s past “uniquely disqualifying,” Romano said.
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Given the lack of significant roadblocks toward Smith’s confirmation, the administration could be successful in nominating additional picks with less traditional legal backgrounds, so long as they have buy in from Republicans in their state, Romano said.
Smith’s anticipated confirmation, Romano said, “certainly strikes me as something that the administration could try to use as precedential.”
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