By Frederick T. Davis, former federal prosecutor and member of the New York and Paris bar associations
What is the role of the United States Attorney, and how is it filled? The United States Attorney is essentially the federal prosecutor whose office conducts criminal investigations, obtains indictments, and ensures the necessary legal processes for the effective enforcement of federal criminal laws. There is a US Attorney for each of the 92 geographically divided districts across the territory, where they lead their own team responsible for the daily work of the office. In larger districts like New York or Los Angeles, the office may employ several hundred prosecutors. This position is particularly important because a federal prosecutor wields considerable power with much less judicial oversight than in France or most European countries. These offices only prosecute federal offenses, which are numerically fewer than violations of state laws, prosecuted separately according to the laws, procedures, and jurisdictions of each state. However, federal prosecutors are responsible for the enforcement and prosecution of significant federal laws related to terrorism, various forms of commercial and securities fraud, immigration, and other federal interest offenses.
The rules for appointing US Attorneys are precise and affirm an essential principle: the president cannot appoint someone to this position without Senate approval, except on a strictly temporary basis and for a limited duration. The essential structure of this procedure is found in the Constitution itself, which states in Article II, § 2, that all “officers of the United States” – a category in which US Attorneys fall – can only perform their duties with the formal consent of the Senate (“advice and consent”). Relevant legislation authorizes the president to nominate a US Attorney for each district “with the advice and consent of the Senate” for a four-year term, with the holder being “revocable by the president.” This provision serves a partial but essential function in ensuring a certain degree of “independence” for federal prosecutors by allowing the Senate to reject a candidate whose loyalty would be aligned with the president’s partisan political goals.
What has Trump done, and what decisions have the courts made? The guiding principle of the Department of Justice under Trump is his obsession with ensuring that federal prosecutors are personally loyal to him and carry out his political directives. Attorney General Ms. Bondi, his senior deputy Todd Blanche, and many other individuals holding important positions in his administration were previously Trump’s personal lawyers. This situation has led to dramatic episodes, some of which have been detailed previously. For instance, the political accommodation with former New York Mayor Eric Adams, whose corruption indictment – obtained under the Biden administration – was dropped on the order of the Attorney General and his deputy after Adams agreed to support Trump’s immigration policy agenda. This reversal led to the dramatic resignations of seasoned attorneys involved in the case who refused to follow Trump’s new “political line.” Trump specifically dismissed several prosecutors deemed too slow to obey him and attempted to replace them with supporters – often inexperienced attorneys in criminal prosecutions but loyal to him. The Senate confirmation for some of his candidates was significantly delayed, leaving an increasing number of vacancies.
In several of these vacant districts, Trump invoked the provision allowing the Attorney General to appoint an interim prosecutor for 120 days. Upon the expiration of this period, these interim prosecutors could no longer perform their duties, and local judges at times appointed experienced and well-regarded jurists to these positions. However, rather than accepting this situation, Ms. Bondi directly ousted the court-appointed individual in one instance within hours, attempting to install Trump’s candidate despite the 120-day deadline expiring.
This unprecedented situation immediately led to numerous legal challenges, particularly from defendants whose indictments were signed by – or under the nominal supervision of – one of Trump’s unlawfully installed candidates. Without exception, all judges faced with the issue concluded similarly: unc…
What is the current situation, and what possibilities lie ahead? The current situation can be described in one word: chaotic. In most districts, the US Attorney has been approved by the Senate, interim prosecutors still hold office within the allotted 120 days, or court-appointed candidates have been maintained by the Trump administration. Proceedings in these districts are progressing normally. However, in some districts, a true deadlock has emerged where no one is performing the duties of a prosecutor. Courts refuse to recognize the candidates unlawfully installed by Trump, while Trump dismisses court-appointed replacements.
At this point, it is uncertain how long this situation will last or its full extent. The issue is that even if the courts agree that non-Senate-confirmed candidates cannot perform their duties beyond 120 days, and those appointed by Trump after this period lack legitimacy and can be dismissed, complex procedural questions remain regarding the legal validity of actions taken in these offices during the impasse. Two of the most high-profile indictments – against former FBI Director James Comey and New York State Attorney General Letitia James – were personally signed by an unlawfully installed prosecutor; these indictments were nullified, though the Justice Department has appealed each nullification. To date, the courts have not annulled indictments signed by substitute federal prosecutors, though they nominally reported to an unlawfully installed prosecutor or a vacant position; however, the legality of such actions is far from established. Attorneys representing defendants in these districts understandably challenge the legality of nearly all prosecution actions carried out under an illegal or non-existent attorney, and it will take months or even years before a clear and definitive picture emerges. A judge has publicly warned that “dozens of dangerous criminals could see their cases dismissed or their convictions ultimately overturned” due to this issue.
The “rule of law” under Trump continues to spark bewilderment.
