The Trump administration’s U.S. attorney strategy, explained
How the Trump administration is bypassing checks and balances to install top federal prosecutors without Senate confirmation
The U.S. Department of Justice is the American people’s law firm, not the president’s. It has traditionally been insulated from political influence to ensure that it can uphold the rule of law without fear or favor.
But the second Trump administration has eroded safeguards protecting the Justice Department from misuse, naming the president’s own personal lawyers and staffers to lead the department and ordering them to specifically pursue charges against his perceived political enemies.
The president’s influence over the Justice Department has gone beyond its headquarters in Washington, D.C. The administration has also attempted to put loyalists in charge of federal prosecutors’ offices in states across the country. But the Constitution and federal law require those prosecutors, called U.S. attorneys, to go through a strict appointment process before they can fully take charge of those offices. Congress and the courts serve as a check on the executive branch in that process, so the president can’t singlehandedly seat the department.
But when Trump’s nominees have hit roadblocks in that approval process, he hasn’t withdrawn them from their posts or put forth new nominees. Instead, he has attempted to use dubious legal maneuvers to keep his chosen prosecutors in power, circumventing checks and balances on the executive branch and undermining the rule of law in the process.
U.S. attorneys are the top federal prosecutors in their judicial districts. They prosecute cases on behalf of the federal government and represent the federal government in court in their district.
It’s normal for a new president to ask U.S. attorneys that served under the previous administration to step down. The president usually nominates new people to fill each role, each of whom usually has the approval of their home state’s senators before being considered by the U.S. Senate.
The nominees must gain the votes of a majority of the chamber in order to be confirmed and take charge of their respective offices.
When these posts are vacant, someone temporarily takes charge of the offices. Those temporary roles—“acting” or “interim” U.S. attorneys—come with limited terms: Those in “acting” roles can typically only serve for 210 days, and those in “interim” roles can only serve for 120 days.
Step 1: Appoint an “interim” U.S. attorney and let their terms expire.
One of the first examples of the Trump administration’s strategy came in March 2025, when then-U.S. Attorney General Pam Bondi named Alina Habba, one of the president’s former personal lawyers, as the interim U.S. attorney for New Jersey.
Step 2: If federal judges choose a new prosecutor to lead the office, fire them.
After an interim U.S. attorney’s 120 days in office are up, federal judges from that district can appoint someone to fill the role until the Senate confirms a new nominee. When judges have chosen someone other than the administration’s preferred prosecutor, the Justice Department has fired that person, leaving the office vacant.
In New Jersey, judges appointed Desiree Leigh Grace, the office’s second-in-command, after Habba’s term expired; Bondi fired Grace just hours later.
Step 3: Install the administration’s chosen prosecutor and attempt to hand them the powers of a Senate-confirmed U.S. attorney.
To fill the vacancy, federal officials have then installed their preferred prosecutor as a “first assistant” U.S. attorney, the office’s second-highest position. The administration has argued that this move automatically elevates the prosecutor to the level of an “acting” U.S. attorney, and that they can exercise all of the duties of a Senate-confirmed prosecutor—without the Senate having ever weighed in. As a fallback, the administration has also simultaneously named the first assistant as a “special attorney” and delegated all the duties of the office to them.
In New Jersey, Bondi designated Habba as a first assistant and appointed her as a special attorney. The Justice Department contended that this scheme allowed Habba to once again take charge of the office lawfully and gave her rightful control of its power, over the objections of New Jersey’s U.S. senators and federal judges.
The Trump administration has attempted to use this strategy, in full or in part, to install its preferred prosecutors atop U.S. attorney’s offices in California, Nevada, New Mexico, New York, New Jersey, Rhode Island, Virginia, Washington state, and Wisconsin.
Federal courts have rejected these efforts, finding the prosecutors have been occupying their roles unlawfully. Appeals courts have affirmed those rulings in New Jersey, New York, and Nevada. The Justice Department’s appeal in Virginia is awaiting a decision.
Some of the administration’s picks have willingly left office: After an appeals court held that Habba was in office unlawfully, she resigned. So did Lindsey Halligan, the administration’s chosen prosecutor for the Eastern District of Virginia. Others remain in office, continuing to use workarounds while the Justice Department insists in court challenges that they are lawfully leading their offices.
In September 2026, the Trump administration asked the U.S. Supreme Court to review appeals courts’ rulings regarding Sigal Chattah in Nevada and John Sarcone III in the Northern District of New York. Now, the nation’s high court may take up the question of whether the administration’s appointment strategy is lawful.
The Society for the Rule of Law, represented by States United, filed friend-of-the-court briefs in two cases challenging the strategy the administration used to keep its top picks in place indefinitely without Senate confirmation.
The first brief concerns Halligan, who used the power of her office to bring charges against former FBI Director James Comey and New York Attorney General Letitia James, two of President Trump’s perceived rivals.
The second brief concerns Sarcone, who issued subpoenas to James’s office as part of an investigation into lawsuits she brought against Trump.
A federal judge dismissed the Virginia cases in November 2025 on the basis that Halligan was serving in her role unlawfully and did not have the power to bring the charges. Another federal judge threw out Sarcone’s subpoenas against James on the same basis. The Justice Department appealed both rulings; it lost in New York, and is awaiting a decision in Virginia.
“The consequences of the administration’s attempted end-run around federal law are clear,” the briefs explain. “Its actions threaten the legitimacy of prosecutions, the credibility of U.S. Attorney’s offices, and the fair and impartial administration of justice. The case on appeal [in New York] demonstrates as much. It shows a Justice Department wielding its prosecutorial power to investigate a perceived political adversary to retaliate for prior civil litigation against the President. And it shows a Justice Department that prioritizes settling scores above competence and character and the fair administration of justice.”
Both briefs urged appeals courts to uphold district court rulings.
The Trump administration’s unlawfully appointed prosecutors have used the powers of their offices to improperly target state officials. Habba, for instance, instructed her office to investigate New Jersey’s then-governor and then-attorney general over state immigration policies and brought charges against the mayor of Newark that were subsequently dismissed.
The administration’s picks have also used their power to undermine Americans’ confidence in elections. Chattah pushed for the FBI to investigate unfounded claims of fraud in the 2020 election. Bill Essayli, the administration’s chosen U.S. attorney for the Los Angeles area, said he opened multiple investigations into California’s 2026 primary elections, without citing any evidence.
There are checks and balances built into the Justice Department and the process for appointing U.S. attorneys to ensure that the needs of the American people take precedence over the president’s personal priorities. The Trump administration’s strategy to appoint federal prosecutors without the consent of Congress is a direct attempt to undermine the rule of law.
- States United: How Politicized Prosecutions Undermine the Rule of Law
- States United: Sharing the Facts About Politicized Federal Prosecutions
- The New York Times: Appeals Court Rejects Trump’s Strategy of Picking U.S. Attorneys
- Politico: The next big test of Trump’s power: firing top prosecutors
- Politico: Trump bypasses the Senate — and the courts — to install loyal US attorneys
- PBS NewsHour: ‘This is about the rule of law’: U.S. attorney fired by Trump sues to overturn dismissal