Appeals Court Strikes Down Executive Branch's Strategy to Bypass Senate Confirmation for U.S. Attorneys

A common misconception about federal power is that when the Senate refuses to confirm a president's nominees, the executive branch can simply install its preferred candidates indefinitely through administrative loopholes. The reality, as reinforced by a unanimous federal appeals court this week, is that the constitutional requirement for Senate confirmation cannot be bypassed simply because it is politically inconvenient.[1][2]

On Monday, the 9th U.S. Circuit Court of Appeals struck down the Department of Justice's strategy for installing acting U.S. attorneys without congressional approval. The three-judge panel ruled that Sigal Chattah, a staunch ally of President Donald Trump, has been unlawfully serving as the top federal prosecutor in Nevada.[1][3]

The decision marks a significant judicial rebuke of a nationwide strategy employed by the administration to place loyalists at the helm of federal prosecutors' offices. By utilizing a novel interpretation of federal vacancy laws, the executive branch had sought to circumvent both the Senate and the district judges who traditionally fill long-term vacancies.[2]

The legal dispute centers on the mechanics of the Federal Vacancies Reform Act of 1998, a statute designed to keep the government functioning when Senate-confirmed officials leave their posts. Under the default rule of the act, the "first assistant" to a vacant office automatically assumes the role of acting official for a limited period.[5]

However, the law does not explicitly define who qualifies as a first assistant, nor do the statutes governing U.S. attorneys designate one. The Justice Department attempted to exploit this ambiguity. After Chattah's initial 120-day interim appointment expired, former Attorney General Pam Bondi designated her as the first assistant to the vacant office, arguing this triggered the automatic succession provision and allowed her to remain in charge.[1][5]

The 9th Circuit panel, which included two judges appointed by Trump and one by former President Bill Clinton, unanimously rejected this maneuver. Writing for the court, U.S. Circuit Judge Eric Miller concluded that the rule of automatic succession applies exclusively to a first assistant who already held that position at the time the vacancy arose.[1][4]

The court emphasized that the statute does not permit the executive branch to fill an existing vacancy by designating a new first assistant after the fact. Furthermore, the panel held that the attorney general cannot create a de facto acting U.S. attorney by simply delegating all the functions and duties of the office to an unconfirmed individual.[3][4]

This ruling in Nevada is not an isolated incident but part of a broader judicial pushback against the administration's appointment tactics. In December 2025, the 3rd U.S. Circuit Court of Appeals issued a similar unanimous ruling disqualifying Alina Habba, Trump's former personal attorney, from serving as the acting U.S. attorney in New Jersey.

In that case, the appellate court warned that the government's delegation theory was so broad that it bypassed the constitutional appointment and confirmation process entirely. Similar challenges have resulted in the removal of unconfirmed prosecutors in Virginia and New York, where judges have warned that novel leadership plans undermine the rule of law.[2]

The immediate consequence of the 9th Circuit's decision is the disqualification of Chattah from supervising or participating in three specific federal criminal cases. Defense attorneys across the country have seized on these rulings, moving to dismiss indictments and disqualify prosecution teams led by unlawfully appointed officials.[1][3]

While the district court in Nevada declined to dismiss the underlying indictments in Chattah's cases, the instability injected into the justice system is profound. When the individuals running federal prosecutor offices lack lawful authority, every subpoena, indictment, and plea agreement they authorize becomes vulnerable to due process challenges under the Fifth and Sixth Amendments.[2]

The administration has signaled its intention to appeal the 9th Circuit's decision to the Supreme Court. Until the high court intervenes, the Justice Department faces a fractured legal landscape where its preferred prosecutors are barred from exercising authority in multiple jurisdictions, forcing a reckoning over the limits of executive power.[1]