Trump faces major test over appointing US attorneys without Senate approval

President Donald Trump’s power to install preferred federal prosecutors without Senate confirmation will face a major test Tuesday in a federal appeals court, while his administration is separately asking the Supreme Court to take up a related dispute that could carry nationwide consequences.The 4th U.S. Circuit Court of Appeals will hear the Trump administration’s effort to revive the prosecutions of former FBI Director James Comey and New York Attorney General Letitia James, whose indictments were dismissed after a judge found that former interim U.S. Attorney Lindsey Halligan was unlawfully appointed.The arguments will come one week after the administration petitioned the Supreme Court to review a related ruling that disqualified Sigal Chattah from leading federal prosecutions in Nevada. The justices have not decided whether to hear the case. The cases arise under different laws and involve different appointment maneuvers. But each centers on the same underlying conflict: whether an administration may use temporary appointments and delegated powers to keep a preferred prosecutor in charge without securing Senate confirmation.Thomas Berry, director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies, said the 4th Circuit judges will likely focus on whether the administration’s interpretation would remove any incentive to nominate permanent U.S. attorneys.“If you could continually reset that time, or if you could immediately fire the court’s pick for a U.S. attorney and replace that person with someone the president wants, then there would be no incentive for the president to put someone before the Senate,” Berry told the Washington Examiner.“You want these prosecutorial decisions to be made by people who have been vetted by the Senate,” Berry said. “Everybody who is in there who was not vetted by the Senate should be, at most, a placeholder and should be there for as limited a time as possible.”But some legal experts say prosecutorial appointments should fall squarely within the executive branch’s authority.Mike Davis, founder of the Article III Project and a former chief counsel for nominations to Senate Judiciary Committee Chairman Chuck Grassley (R-IA), framed the disputes as a test of presidential control over the executive branch.“These cases will decide whether the duly elected president of the United States gets to run his executive branch, including picking his U.S. attorneys, or whether unelected Democratic judges get to do it,” Davis, a close ally of Trump, told the Washington Examiner.“If Democratic senators refuse to confirm the president’s picks to run the Justice Department, the president should at least be able to appoint his people to acting positions,” Davis said.Comey and James cases reach appeals court Senior U.S. District Judge Cameron McGowan Currie, an appointee of former President Bill Clinton, dismissed the Comey and James indictments in November 2025 after finding that Halligan’s appointment violated the federal law governing interim U.S. attorneys and the Constitution’s appointments clause.Then-Attorney General Pam Bondi appointed Halligan in September 2025 after the 120-day period in which the attorney general could select an interim prosecutor had already expired. Under the statute, the district court gained the authority to appoint an interim U.S. attorney once that period ended.Lindsey Halligan, outside of the White House, Aug. 20, 2025, in Washington. (AP Photo/Jacquelyn Martin) Currie found that Halligan lacked lawful authority to secure or sign either indictment and that Trump’s attorney general, who is now Todd Blanche, could not ratify those actions after the fact. She dismissed both cases without prejudice, allowing the Justice Department to pursue new indictments through a lawfully appointed prosecutor.The problem for the administration, however, is that Halligan’s appointment came in the context of the administration firing her predecessor, Erik S. Siebert, after he was unwilling to bring the cases involving James and Comey. Siebert formally resigned, though the administration contends he was ultimately fired.The DOJ’s appeal thus asks the 4th Circuit to reverse Currie’s decision. The outcome could determine whether the prosecutions resume under the original indictments or whether the administration must begin again with a prosecutor whose appointment withstands judicial review.Comey was indicted on charges of making a false statement and obstructing Congress during testimony about leaks of sensitive information. James was separately indicted on bank fraud and false statement charges connected to a mortgage on a home in Norfolk, Virginia. Both pleaded not guilty.Administration asks Supreme Court to review Nevada ruling The administration’s Supreme Court petition last week arose from a matter involving Trump’s selection of Chattah to lead the U.S. attorney’s office in Nevada.Jason Frierson, a Biden appointee, resigned as Nevada’s U.S. attorney on Jan. 17 last year. Bondi appointed Chattah as interim U.S. attorney effective April 1 under a federal law that allows an attorney general’s appointee to serve for 120 days.Two days before that period ended, Chattah resigned as interim U.S. attorney. Bondi then designated her the office’s first assistant and asserted that the Federal Vacancies Reform Act automatically made Chattah the acting U.S. attorney. Bondi separately appointed her as a special attorney and delegated broad prosecutorial powers to her.Three men indicted on felony charges after that maneuver challenged Chattah’s authority and sought to have their indictments dismissed or Chattah disqualified.A federal judge ruled that Chattah could not lawfully serve as acting U.S. attorney or supervise their prosecutions. The judge declined to dismiss the indictments because assistant U.S. attorneys, who derived their authority from the attorney general, had signed them.A unanimous 9th U.S. Circuit Court of Appeals panel affirmed that decision in August.“The FVRA’s text and structure are unambiguous: The statute does not permit the executive to fill an existing vacancy by designating a new first assistant,” Judge Eric Miller, a Trump appointee, wrote for the panel.Miller also rejected Bondi’s attempt to delegate to Chattah all the powers of a U.S. attorney, writing that the administration could not “create a de facto Acting U.S. Attorney” after Chattah became ineligible to serve under the vacancies law.Solicitor General D. John Sauer urged the justices last week to grant the petition and reverse the 9th Circuit if they agree to hear the case. Nothing in the law restricts acting service to someone who was the first assistant before the vacancy arose, he argued.D. John Sauer, Special Assistant Attorney General with the Louisiana Department of Justice, testifies during a House Judiciary subcommittee hearing on what Republicans say is the politicization of the FBI and Justice Department and attacks on American civil liberties on Capitol Hill in Washington, Thursday, July 20, 2023. (AP Photo/Patrick Semansky) Republican and Democratic administrations have used the same approach in other federal offices since at least the George W. Bush administration, according to Sauer.The 9th Circuit’s ruling “threatens to inject mass confusion into five U.S. Attorney’s Offices in the Ninth Circuit that collectively handle over 8000 civil and criminal cases annually,” Sauer wrote.He called post-vacancy first-assistant appointments and delegation “a critical tool that the Executive Branch has used without meaningful objection for 25 years.”Berry acknowledged that the first-assistant strategy preceded the second Trump administration but said its use could allow presidents to select people from outside the government and install them as acting officers immediately.“It would be a very big deal if that is closed down, and I think it would be a good development,” Berry said. “It would not mean there are no choices left for whom to pick as an acting officer. The president still has many choices, including civil servants at the top of the civil service pay scale.”Berry said the Supreme Court petition’s second question, involving delegation, could carry even broader consequences.“If you can delegate all the duties of the office to someone to fill that gap, then you do not need the Vacancies Act,” Berry said. “The time limits and the limits on who is eligible to be an acting officer will only matter if the Vacancies Act is the only tool available to fill that gap.”The default rule generally allows Cabinet secretaries to delegate powers to subordinates, Berry said. He argued, however, that assigning every power of a vacant office to one person crossed the line from routine delegation to the creation of an acting officer “in all but name.”Senate roadblocks fuel appointment battle The legal disputes have unfolded as Trump has clashed with Grassley over the Senate’s “blue slip” practice, which allows home-state senators to block U.S. attorneys and district court nominees by withholding approval.Trump has pressed Grassley to abandon the century-old practice, arguing that Democratic senators have prevented him from securing confirmation of prosecutors in states they represent.Grassley has continued to defend blue slips, saying they protect the Senate’s constitutional role and encourage consultation between presidents and senators. The disagreement has created a rare break between Trump and the Iowa Republican.Federal courts have invalidated or restricted similar appointments involving Alina Habba in New Jersey, John Sarcone in New York, Halligan in Virginia, and Bill Essayli in California, who was previously the U.S. attorney for the Southern District but was forced to become the first assistant U.S. attorney.Sauer argued that the federal appeals courts are divided on whether an agency leader may delegate the duties of a Senate-confirmed office. The Federal Circuit has ruled that the vacancies law does not restrict who may perform duties that can ordinarily be delegated, while other appeals courts have rejected that interpretation.Berry said the administration likely chose the Nevada dispute for Supreme Court review after sustaining repeated losses in other courts.TRUMP ADMINISTRATION REMOVES AFGHAN NATIONAL IN FIRST USE OF ALIEN TERRORIST REMOVAL COURT“They have lost pretty much across the board,” Berry said. “I think they know that going to the Supreme Court is their only option, so they decided not to wait any longer.”The Nevada defendants have until Oct. 8 to respond to the administration’s petition, although they could seek an extension. The Supreme Court will then decide whether to hear the case.