Like many safeguards in the Constitution designed to curb an overreaching president, the Senate’s “advice and consent” role over nominations is badly frayed. Early in his presidency, Donald Trump leaned on senators to push through controversial Cabinet picks; more recently, blocked by a handful of Democratic senators, he turned to a legal shell game to place loyal prosecutors in charge of key U.S. Attorney’s Offices in blue states. Five courts have now rejected that maneuver—creating major headaches for the Justice Department and casting serious doubt on how long Trump can keep skirting congressional oversight to empower his allies.
The two latest setbacks came in rapid succession. This Monday, a federal appeals panel upheld a lower-court ruling that Alina Habba—formerly Trump’s personal attorney—never had lawful authority to run the U.S. Attorney’s Office in New Jersey. A week earlier, a district judge in the Eastern District of Virginia held that Lindsey Halligan—also once Trump’s personal lawyer—had likewise been unlawfully installed as the top federal prosecutor there.
The underlying legal questions are dense and technical. But the fallout lays bare Trump’s contempt for guardrails, his hostility to professional norms, and his fixation on turning routine government work into a vehicle for personal payback. U.S. attorneys, who lead offices in 94 federal districts, are the frontline officials enforcing federal law nationwide. By placing loyalists in these jobs without Senate confirmation, Trump effectively gave them a free hand to target his enemies. A system meant to check presidential power has been twisted into a tool for expanding it.
Of the two cases, Halligan’s removal makes for the more dramatic story. Handpicked as part of Trump’s broader push for retribution, she swiftly secured indictments of former FBI Director James Comey and New York Attorney General Letitia James. Both cases have now been tossed—not on the substance, but because Halligan never had the legal authority to bring them. The Justice Department must now decide whether, and on what basis, to try to salvage Trump’s revenge prosecutions. A different prosecutor from Halligan’s team has already failed to persuade a grand jury to re-indict James.
Habba’s situation, by contrast, has not yet resulted in any prosecutions being formally vacated, even though a district judge ruled in August that she could not lawfully serve as New Jersey’s top federal prosecutor. Her disputed status nonetheless sowed paralysis and confusion in the state’s federal courts. Two other judges have since disqualified lead prosecutors in Nevada and Los Angeles, and similar challenges are pending in New Mexico and in Albany, New York. Other districts may be vulnerable as well; Democratic Senator Chris Coons has publicly suggested that the U.S. attorney in Delaware is “probably” serving in violation of the law.
The legal architecture Trump is exploiting is so convoluted that multiple judges have resorted to bullet-point lists and charts to map out how the administration broke the rules. It’s easier to start with how the system is supposed to work—and then see how Trump has thrown that balance off.
Ordinarily, the president nominates U.S. attorneys, and the Senate decides whether to confirm them. Writing in The Federalist Papers, Alexander Hamilton argued that this shared responsibility would “tend greatly to preventing the appointment of unfit characters.” A president would be less inclined to nominate cronies chosen purely out of “favoritism” if he risked humiliation before an unimpressed Senate. In turn, senators could use confirmation hearings to extract commitments, gather information, and ensure that top law-enforcement officials answer not only to the White House but also to another branch of government.
That’s the civics-textbook version. In practice, the process is often slow and messy. U.S. Attorney’s Offices can sit without a Senate-confirmed leader for long stretches—either because the White House hasn’t settled on a nominee or because the Senate hasn’t moved. To keep the machinery of justice running, Congress created backup mechanisms that allow temporary “acting” or “interim” U.S. attorneys to step in. The overlapping titles and pathways only increase the complexity, but the basic idea is familiar: A career official might take over when a Senate-confirmed U.S. attorney departs at the end of an administration, holding the fort until the new president can get a nominee confirmed. Stanford law professor Anne Joseph O’Connell, who studies these temporary appointments, describes the framework as an attempt to balance “accountability and workability.”
Trump has long bristled at this balance. In his first term, he leaned heavily on acting officials across the government. “I like acting,” he said in 2019. “It gives me more flexibility.” During his current term, Senate Republicans have largely gone along with even blatantly unqualified nominees—just look at the controversies surrounding Defense Secretary Pete Hegseth and FBI Director Kash Patel. But one key constraint remains: Senator Chuck Grassley, the Republican chair of the Judiciary Committee, has continued to honor the “blue slip” tradition for U.S. attorney appointments, giving home-state senators effective veto power over nominees.
That practice sharply limits Trump’s ability to install hard-line MAGA prosecutors in blue states, where many of his preferred targets live and work and where any criminal cases against them would most likely be brought. To get around this obstacle, Trump and Attorney General Pam Bondi turned to the murkier world of temporary appointments, stitching together aggressive legal theories to extend those appointments long past their intended shelf life.
For a while, this gambit worked. In New Jersey, Habba brought charges against Newark Mayor Ras Baraka and Representative LaMonica McIver, both Democrats, stemming from an altercation at an immigration detention facility. (The case against Baraka was quickly dismissed; McIver is seeking to have her case thrown out.) In New York, temporary U.S. Attorney John Sarcone subpoenaed Letitia James’s office over her past investigations into Trump and the National Rifle Association. Other challenged prosecutors have pushed the FBI to pursue supposed anti-Trump conspiracies, clashed frequently with judges, and taken an aggressive stance against anti-ICE protesters.
Then judges started pushing back. Habba was the first to draw serious scrutiny. In late August, District Judge Matthew Brann ruled that she had been serving unlawfully since July 1. Over the next two months, district courts in Nevada and the Central District of California likewise deemed the administration’s tactics illegal and disqualified the sitting U.S. attorneys. Challenges in New Mexico and the Northern District of New York moved forward as well; in Albany, Letitia James attacked Sarcone’s subpoenas by arguing his temporary appointment had expired in mid-July.
Given that backdrop, the administration might have exercised more caution before using a similar workaround to promote Halligan to lead prosecutor in the Eastern District of Virginia. But Trump’s appetite for payback overrode those concerns. After her predecessor, Erik Siebert, reportedly refused to move ahead with flimsy charges against Comey and James, Trump pushed him out and elevated Halligan, who promptly filed the cases Siebert had declined. (Siebert had been approved by Virginia’s two Democratic senators—something Trump later cited when demanding his removal.) According to Judge Cameron McGowen Currie, who ruled Halligan’s appointment unlawful last week, Halligan was improperly placed in the job from day one because the Justice Department slotted her in as a backfill for Siebert, rather than through a valid appointment of her own. That distinguishes her from other challenged prosecutors, whose illegal service stemmed from attempts to extend their tenure.
Until recently, all of these rulings came from district judges. The Third Circuit Court of Appeals, reviewing the Habba case, is the first appellate court to weigh in on Trump’s broader strategy. Its unanimous, sharply worded decision is a major setback for the administration. The opinion is restrained in tone but unequivocal in substance: “Habba is not the Acting U.S. Attorney for the District of New Jersey.” The state’s two Democratic senators, who had opposed her appointment from the outset, celebrated the ruling, declaring that U.S. attorneys must be chosen “consistent with the rule of law, not because of their political loyalty or through political maneuvering.”
When Habba was first disqualified in August, the Justice Department reacted defiantly. Bondi railed against what she called “activist judicial attacks,” and Habba proclaimed on Fox that she was “the pick of the president.” Since the appeals court weighed in, however, the administration has been notably quieter. Officials now have to decide whether to cut ties with Habba, ask the full Third Circuit to rehear the case, take the issue to the Supreme Court, or wait to see whether other courts diverge.
The stakes remain high. In February, the Ninth Circuit is scheduled to consider whether Nevada’s U.S. attorney is lawfully serving. A district court in the Northern District of New York has already heard arguments on Letitia James’s challenge to John Sarcone’s authority.
Trump is not known for backing away from a fight. But the calculus may be shifting. The short-term gains of installing loyal prosecutors, weighed against the legal chaos, reversed indictments, and institutional damage, may finally be tipping in the wrong direction. The Justice Department has declined to say whether it will continue contesting the Third Circuit’s decision on Habba. And although White House Press Secretary Karoline Leavitt initially vowed to fight to keep Halligan—describing her as “legally appointed” and “extremely qualified”—the Justice Department has yet to file an appeal more than a week later.
