Trump Kept Unconfirmed Prosecutors in Charge. Courts in Six Districts Ruled It Unlawful.

The President's Own Words

On September 20, 2025, Trump posted a message addressed to his Attorney General.¹ The chief federal prosecutor in eastern Virginia had just left the job.¹ "No, I fired him, and there is a GREAT CASE," Trump wrote, and he named a successor: "Lindsey Halligan is a really good lawyer, and likes you, a lot."¹ Two days later, Attorney General Pam Bondi installed her.¹ Within weeks Halligan obtained an indictment of New York Attorney General Letitia James.¹ A federal judge later ruled that Halligan had never lawfully held the office, and dismissed the indictment.¹

The same post named three people.¹ Trump wrote that he had reviewed more than 30 statements and posts complaining that James Comey, Adam Schiff and James were "all guilty as hell, but nothing is going to be done."¹ He added: "JUSTICE MUST BE SERVED, NOW!!!"¹

The prosecutor Trump said he fired was Erik Siebert, his own nominee, recommended by Virginia Senators Mark Warner and Tim Kaine.¹² The senators said Trump forced him out because he refused to bring charges against the President's perceived enemies when the facts did not support them.²

The Replacement Could Not Lawfully Bring the Case

Halligan was a former White House aide with no prior prosecutorial experience.¹ On October 9, she alone presented the case that produced a two-count indictment charging James with bank fraud and making false statements to a financial institution.¹

Her problem was a deadline: Congress limits an Attorney General's interim appointee to 120 days of service after appointment, or until a presidential appointee qualifies, whichever comes first.³ If the 120 days expire, the district's judges can appoint a prosecutor until the vacancy is filled.³ Siebert's 120 days ended on May 21, 2025, and the district judges had appointed him to continue serving from that date.¹ His departure, Judge Cameron McGowan Currie held, did not return the appointment power to Bondi.¹ Currie ruled on November 24.¹

Opinion & Order, United States v. James, No. 2:25-cr-00122 (E.D. Va. ECF No. 140), Conclusion ¶ 1¹

The appointment of Ms. Halligan as Interim U.S. Attorney violated 28 U.S.C. § 546 and the Appointments Clause of the U.S. Constitution.

Bondi had tried to repair the appointment with two later orders, one designating Halligan a special attorney retroactively and both ratifying her grand-jury work.¹ Currie rejected the government's arguments that successive interim appointments were allowed, that the later orders could cure the defect, and that the doctrine recognizing some acts of improperly appointed officials should preserve the indictment.¹ The judge set aside Halligan's official acts, including securing and signing James's indictment.¹

Trump got the charges he demanded, but this appointment could not sustain them: Currie dismissed James's indictment without prejudice, allowing a new prosecution through a lawful process.¹ A January 8, 2026 order by a federal judge in New York records that the Virginia court also dismissed the indictment against former FBI Director James Comey on the same appointment ground.⁴

The government appealed, and the Fourth Circuit heard argument on September 15, 2026.⁵ The court's list of opinions posted from September 11 through October 9 shows no decision in the appeal.⁶

A New Title for the Same Person

Virginia was one of six: courts in Virginia, New Jersey, New York, Nevada, California and New Mexico held appointments or continued service unlawful, and three appeals courts affirmed.¹⁷⁸⁹⁴ The Ninth Circuit wrote that every other court to consider these tactics had concluded that they violate the limits of the federal vacancies law.⁹

In New Jersey, New York and Nevada the device was a new title for the same person.⁷⁸⁹ In New Jersey, the federal judges chose a successor to Alina Habba as her interim term ran out; the Justice Department fired the successor, Trump withdrew Habba's nomination, and Bondi gave Habba new titles to keep her in charge; the Third Circuit affirmed her disqualification on December 1, 2025.⁷ DOJ said it did not seek Supreme Court review in New Jersey because a court had since appointed a U.S. Attorney.¹⁰ In Nevada, Sigal Chattah resigned shortly before her interim term would have expired, Bondi gave her new titles effective upon the resignation to put her back in charge, and the Ninth Circuit affirmed her disqualification on August 17, 2026.¹¹⁹ Trump did not nominate Chattah for the permanent job; he nominated George Kelesis on February 11, 2026.⁹ DOJ's September 8 petition said that nomination remained pending.¹⁰ In both states the district courts refused to dismiss the defendants' indictments.⁷⁹

New York involved James too: John Sarcone personally directed two grand-jury subpoenas to her office concerning New York's civil cases against Trump and the National Rifle Association.⁴⁸ His 120-day interim term had expired, and the district judges had declined to extend it; DOJ kept him in charge through new designations as first assistant and special attorney.⁴⁸ On January 8, 2026, Judge Lorna Schofield quashed the subpoenas because Sarcone was not lawfully serving as Acting U.S. Attorney and disqualified him from the underlying investigations.⁴ Schofield's order also records that on October 28, 2025, a federal court in the Central District of California disqualified Bilal Essayli from performing the functions and duties of Acting U.S. Attorney, but permitted him to continue as First Assistant and declined to dismiss indictments signed by Assistant U.S. Attorneys in prosecutions in which he had no personal involvement.⁴

DOJ appealed and lost.⁸ On August 21, the Second Circuit majority held that automatic succession covers a first assistant already in place when the vacancy arises, and that delegating all the office's duties to Sarcone unlawfully circumvented the Federal Vacancies Reform Act.⁸ The court affirmed the quashing order and upheld his disqualification because the government had not adequately argued against that remedy on appeal.⁸ The subpoenas were by then unenforceable anyway: the grand jury had been discharged on March 9.⁸

DOJ conceded that Sarcone could no longer serve as acting prosecutor under the vacancies act's 210-day limit, yet told the court he remained the office's operative head, and Trump had submitted no nominee for the seat.⁸ On September 8, the government told the Supreme Court it intended to seek review.¹⁰

A Court Appointment, a Presidential Removal, and a Paused Reinstatement

On July 15, 2026, the Western District of Washington's judges unanimously appointed Roger Rogoff under the statute that lets judges fill the office after the Attorney General's interim appointment expires.¹² Less than an hour after he took the oath, a White House personnel official emailed that Trump had directed his removal.¹³ Trump later nominated Simon Peter Serrano for the permanent post and directed Charles Neil Floyd to perform the office's functions.¹³

The government defended the firing under the federal law that says U.S. Attorneys are subject to presidential removal, and asserted a constitutional removal power.¹³¹⁴ It has support: the First Circuit's 2000 Hilario opinion expressly said the President could remove the judges' appointee under that law, although that case decided an appointment challenge, not a presidential firing.¹⁵

On October 1, Judge Stanly Bastian rejected that reading for a court-appointed prosecutor and granted a preliminary injunction restoring Rogoff until a Senate-confirmed successor takes office.¹³ Removing Rogoff, Bastian held, left the office without a lawfully appointed head, jeopardizing its functioning, and letting Trump fire the judges' choice would defeat the statutory incentive to nominate a candidate the Senate could confirm.¹³

The administration won a pause, not a ruling that its firing was lawful: on October 4, the Ninth Circuit granted an administrative stay expressly disclaiming any decision on the appeal's merits.¹⁶ On October 5, a three-judge panel continued the stay, noting that Rogoff did not oppose a stay pending appeal, and set a hearing for October 23.¹⁷ As of October 10, his reinstatement remained paused.¹⁸

The Defense, and What the Courts Rejected

DOJ's strongest defense rests on real statutory powers: Congress permits interim prosecutors, acting officials and special attorneys.³¹⁹²⁰ Its Supreme Court petition argues that presidents of both parties have named first assistants after vacancies arose and delegated vacant offices' duties, and that the Federal Circuit reached a contrary conclusion on delegation.¹⁰ Judge Michael Park, dissenting in Sarcone's appeal, agreed with DOJ, concluding that Sarcone had authority both as Acting U.S. Attorney and as special attorney and that the majority added restrictions Congress had not imposed.⁸

The Third, Second and Ninth Circuits rejected the asserted authority for these arrangements and declined to follow the Federal Circuit's delegation reasoning.⁷⁸⁹ They drew a specific line: general delegation cannot give one person all the powers of a vacant office while avoiding the vacancies law.⁷⁸⁹

The Nevada petition asks the Supreme Court to resolve that disagreement, and as of October 10 the Court had neither granted nor denied review.¹⁰²¹ The district court had paused Chattah's disqualification during the appeal.¹⁰ On August 21 the Ninth Circuit paused the return of the case to the district court, but refused to pause its judgment or strip the opinion of its force as precedent.¹⁰

Responsibility for Federal Prosecution Power

The Constitution divides the ordinary appointment process between presidential nomination and Senate consent, while letting Congress authorize other routes for inferior officers.²² Hamilton described Senate concurrence as "an excellent check upon a spirit of favoritism in the President" in Federalist No. 76.²³ The check worked when it was used: Trump announced he would withdraw Ed Martin's nomination for U.S. Attorney in Washington before the Senate voted, and on August 2, 2025, the Senate confirmed Jeanine Pirro.²⁴²⁵ Todd Blanche, the Deputy Attorney General, was signing DOJ rules as Acting Attorney General by April 16, 2026, and federal law expressly lets the deputy exercise the Attorney General's duties during a vacancy.²⁶²⁷²⁸ Trump nominated him for the permanent post, and the Senate confirmed him on August 8.²⁹³⁰

A federal prosecutor decides whom to investigate and whom to charge.¹⁸ Trump and his Justice Department repeatedly tried to keep that power with their chosen prosecutors beyond the lawful appointment routes, at the cost of indictments and subpoenas the courts set aside.¹⁷⁸⁹⁴ Trump's own part is on the record: he said he fired Siebert and endorsed Halligan, and a White House official wrote that he had directed Rogoff's removal.¹¹³ Bondi executed the appointment maneuvers, and his administration defended them through the appellate courts and in a Supreme Court petition.¹⁷⁸⁹¹⁰

The executive cannot replace the consent and succession Congress requires with another title for the same person.²²³ Federalist No. 65 gives impeachment's subject as "the abuse or violation of some public trust."³¹ The repeated effort to defeat that check is an abuse of public power and grounds for an impeachment case.⁷⁸⁹