Trump's Unlawfully-Appointed U.S. Attorneys

As I have repeatedly written in these blog posts, with authoritarian government comes incompetence. There is a common belief that dictatorships, notwithstanding their otherwise negative characteristics, can at least get things done. In reality, such governments are generally filled with corruption and incompetence and do a very poor job performing. The administration of cult leader, convicted felon, and failed President Donald Trump is fitting this pattern perfectly. Trump has appointed incompetents who either through their incompetence or their disregard for the law, repeatedly act in ways that are not lawful. In the case of U.S. Attorneys, this has been coming back to haunt the administration. In example after example, courts have been ruling that Trump Administration U.S. Attorney appointments have not been lawful. Not only does this potentially remove a Trump appointees, but it endangers any cases in which the unlawfully appointed officials were involved.

At issue is the procedure for appointing U.S. Attorneys. 28 U.S. Code § 541 is fairly clear about this, saying "The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district." This means that the President's nominations are subject to Senate confirmation. However, Senate Democrats have been delaying nomination confirmations as much as possible. Their goal has been to encourage Republicans to negotiate with them. Today's Republicans react to negotiations like a vampire reacts to garlic. Instead of bargaining with the Democrats, Senate Republicans have instead removed the filibuster as a block to some administration nominations. In addition, Trump has been filling vacancies by appointing his choices as interim U.S. Attorneys. Vacancies are addressed in 28 U.S.C. § 546 which says that the Attorney General may appoint someone to fill the vacancy until a Senate-confirmed nominee can take their place or up to 120 days. The law further says that if an appointment expires — the 120 days runs out — "the district court for such district may appoint a United States attorney to serve until the vacancy is filled." The problem that Trump and Attorney General Pam Bondi have been running into is that the 120 days have been expiring without a nominee having been confirmed.

The first of Trump's choices to run into trouble was Alina Habba. This is a complicated story that begins with the appointment of John Giordano as Interim U.S. Attorney for the District of New Jersey. Two weeks later, Trump announced that Habba, one of Trump's personal attorneys who had no prosecutorial experience, would become the Interim U.S. Attorney while Giordano was to be nominated as Ambassador to Namibia. Habba quickly began acting in an extremely partisan manner, pressing charges against Newark, New Jersey Mayor Ras Baraka and U.S. Representative LaMonica McIver, both of whom are Democrats. Trump eventually nominated Habba to be the official U.S. Attorney, but the Senate did not act to confirm her.

In late July, Habba's 120-day interim appointment expired, and District Court judges in the District of New Jersey exercised their right to appoint a replacement. They chose Desiree Grace, who was districts First Assistant U.S. Attorney. Before Grace could assume the position, Bondi fired her. The administration then took a series of moves that ended up with Habba being appointed as First Assistant U.S. Attorney for the District of New Jersey. Because the position of U.S. Attorney was now vacant, the administration argued that the First Assistant automatically filled that role. Habba has since identified herself as the Acting U.S. Attorney for the District of New Jersey.

One point of contention involving Habba is exactly when her appointment as Interim U.S. Attorney ended. The administration argues that the clock started with her appointment. However, others have contended that the 120-day period is not per individual interim appointee, but rather an aggregate term of 120 days regardless of the number of individuals serving during that time. In this case, the 120-day clock began with Giordano's appointment. This dispute is not only relevant in this case, but in another that I will discuss later.

Another point of contention is the validity of Habba's appointment as First Assistant and subsequent elevation to Acting U.S. Attorney. Judge Matthew Brann has ruled that according to the Federal Vacancies Reform Act, the accession of a First Assistant to the role of Acting U.S. Attorney is automatic at the time of the vacancy. When the office became vacant in this case, Habba was not serving as the First Assistant. Therefore, she was not eligible to assume the role of Acting U.S. Attorney. Brann ruled that Habba "is not lawfully holding the office of United States Attorney".

Brann stayed his order so that the Trump administration could appeal. Last week, the U.S. Court of Appeals for the Third Circuit heard the case. The three-judge panel was skeptical of the government's arguments. One judge suggested that the administration was engaging in a "complete circumvention" of the lawful procedure by which high-ranking officials are selected and confirmed. If Brann's order is upheld, not only could Habba be removed from her current acting position, but any cases in which she has been involved could be in danger. However, in most cases, she was not the only attorney involved, so the ramifications to ongoing litigation may be limited.

Almost the exact scenario played out in the District of Nevada. In that case, when the U.S. Attorney for the District of Nevada resigned, the First Assistant U.S. Attorney automatically became the Acting U.S. Attorney. About two months later, Bondi appointed Sigal Chattah to be the interim U.S. Attorney. Just before the expiration of the 120-day period permitted for interim appointees, Chattah resigned and was appointed as the First Assistant. Because the U.S. Attorney position was not vacant, Chattah contended that she would fill the role as Acting U.S. Attorney.

Lawyers with Nevada’s federal public defender’s office challenged the validity of Chattah serving in the acting position, arguing on grounds similar to those in the Habba case that she was not eligible for the position. At the end of September, Judge David Campbell ruled that Chattah was disqualified from supervising criminal prosecutions, effectively making her unable to serve as the Acting U.S. Attorney. Following the example of Judge Brann, Campbell stayed his order to allow an appeal. Currently, Chattah is still serving as the Acting U.S. Attorney.

Earlier this week, the same scenario was repeated for the third time. In this case, in the Central District of California, where Bill Essayli had been appointed as the Interim U.S. attorney. Just prior to the expiration of the 120-day time period, Bondi attempted the same circumvention that she had attempted in New Jersey and Nevada. Essayli resigned as the Interim U.S. Attorney, was appointed as a Special Attorney, and then designated as the First Assistant U.S. Attorney, and then assumed the position of Acting U.S. Attorney because the position was vacant. Just as the two previous judges had done, J. Michael Seabright ruled that this was unlawful. Seabright wrote that:

Essayli unlawfully assumed the role of Acting United States Attorney for the Central District of California. He has been unlawfully serving in that capacity since his resignation from the interim role on July 29, 2025. Essayli may not perform the functions and duties of the United States Attorney as Acting United States Attorney. He is disqualified from serving in that role.

As far as I can tell, this ruling has not been stayed and, therefore, is currently effective.

The last case I am going to discuss has many similarities but a few twists of its own. This is the appointment of Lindsey Halligan as interim U.S. Attorney for the Eastern District of Virginia. On January 21, Bondi appointed Erik Siebert as interim U.S. Attorney for the district. As has been discussed above, such an appointment is valid for up to 120 days. When that deadline was reached, district judges of the Eastern District of Virginia exercised their appointment authority to keep Siebert in that position. Trump pressured Siebert to indict former FBI Director James Comey and New York State Attorney General Letitia James. When Siebert failed to do so, Trump posted what appeared to have been meant as a private message to Bondi on his Truth Social social media network saying that he had fired Siebert and that Lindsey Halligan, another of Trump's personal lawyers who, like Habba, lacked prosecutorial experience, should be appointed to the position. Almost immediately, Halligan was appointed as interim U.S. Attorney for the Eastern District of Virginia. She subsequently obtained grand jury indictments of Comey and James.

Comey and James have challenged Halligan's appointment. They argue that the move violates the Appointments Clause, specifically 28 U.S.C. § 546 mentioned above. That statute allows a single 120-day period for an interim appointment. In the case of the position of U.S. Attorney for the Eastern District of Virginia, that 120-day period had already been used by the previous appointee, Siebert. No Senate-confirmed nominee had served in the position since that time. Therefore, Comey and James argue, Bondi did not have the authority to appoint another Interim U.S. Attorney. This argument is consistent with the ruling of Judge Brann in the Habba case.

Here's where things get interesting. In the cases of Habba, Chattah, and Essayli, judges have ruled that their appointments were unlawful, but they have not thrown out the cases in which they were involved. That is because other government attorneys also were involved in the cases and signed official documents. However, Halligan alone signed the Comey and James indictments. If she is ruled to have been unlawfully appointed, those indictments will likely be tossed. That would be game over as far as the charges against Comey are concerned because the statute of limitations has expired.

Trump wants to behave like a king, appointing whomever he wants to whatever position he wants. However, in the American system of government, the three branches are supposed to be equal. The Constitution, Congress, and the Courts have limited the power of the president, precisely to avoid a president acting as king. In the case of U.S. attorneys, a position that our country's founders believed to be extremely important because those who held the role could act to deprive others of their freedom, Congress acted to require its own advice and consent. Trump has sought to circumvent this requirement by exploiting his ability to fill vacancies. In Trump's view, he should be able to make as many interim appointments as he would like. The Courts, however, have consistently ruled that one 120-day period is allowed. Otherwise, there would be no end to such appointments and the role of Congress would become irrelevant. Trump and Bondi have, therefore, attempted another backdoor method by appointing their nominees to the position of First Assistant. Three courts have now ruled that that workaround is unlawful. It is likely that multiple Trump appointees will be found to be in their positions unlawfully. This may well put many criminal cases in danger, including the high-profile indictments of Comey and James.