Skip to main content
Separation of PowersLegal ExplainerAug 18, 2026, 5:49 PM· 4 min read· in law justice

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

A unanimous federal appeals court has ruled that the Justice Department cannot use administrative loopholes to install acting U.S. attorneys without Senate approval. The decision marks a significant judicial rebuke of the administration's nationwide strategy to bypass congressional oversight.

By Sierra Monroe

Constitutional Separation of Powers Advocates 40%Executive Branch Proponents 30%Criminal Defense Bar 30%
Constitutional Separation of Powers Advocates
Argue that the Senate's confirmation role is a non-negotiable check on executive power.
Executive Branch Proponents
Maintain that the President requires flexibility to staff critical roles when the Senate is slow or hostile.
Criminal Defense Bar
Focus on the due process rights of defendants prosecuted by unlawfully appointed officials.

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]

How the Justice Department attempted to use the Federal Vacancies Reform Act to bypass the Senate.

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]

However, the law does not explicitly define who qualifies as a first assistant, nor do the statutes governing U.S.

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.

The ruling disqualifies unlawfully appointed prosecutors from supervising federal criminal cases.

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 Justice Department faces a fractured legal landscape as it awaits a potential Supreme Court appeal.

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]

What to know

  • A federal appeals court ruled that the DOJ cannot bypass Senate confirmation by designating unconfirmed loyalists as 'first assistants' after a vacancy occurs.
  • The 9th Circuit unanimously disqualified Sigal Chattah from serving as acting U.S. attorney in Nevada.
  • The ruling is part of a broader judicial pushback against the administration's strategy to install preferred prosecutors in blue states.
  • The decision bars Chattah from supervising three federal criminal cases, opening the door for further due process challenges by defense attorneys.

Key terms

Federal Vacancies Reform Act (FVRA)
A 1998 law that dictates who can temporarily fill executive branch vacancies that require Senate confirmation.
First Assistant
The designated second-in-command of a federal office who automatically assumes the acting role when the top position becomes vacant.
Interim U.S. Attorney
A temporary prosecutor appointed by the Attorney General for up to 120 days.
Blue Slip
A Senate tradition allowing home-state senators to block or delay the confirmation of federal nominees from their state.

Reader questions

Why does the Senate have to confirm U.S. attorneys?

The U.S. Constitution requires the President to obtain the 'advice and consent' of the Senate when appointing principal officers, including the top federal prosecutors for each district, to ensure a check on executive power.

What is the Federal Vacancies Reform Act?

It is a 1998 law that outlines who can temporarily perform the duties of a vacant executive branch position. It allows a 'first assistant' to automatically assume the acting role for a limited time.

Will the criminal cases overseen by these prosecutors be dismissed?

While courts have disqualified unlawfully appointed prosecutors from supervising specific cases, they have generally declined to dismiss the underlying indictments, though defense attorneys continue to challenge them.

Sources

Source coverage

5 outlets

3 viewpoints surfaced

Constitutional Separation of Powers Advocates 40%Executive Branch Proponents 30%Criminal Defense Bar 30%
  1. [1]Democracy DocketConstitutional Separation of Powers Advocates

    Appeals court rules Nevada's top federal prosecutor was unlawfully appointed

    Read on Democracy Docket
  2. [2]Talking Points MemoConstitutional Separation of Powers Advocates

    Appeals Court Blocks Trump Scheme on US Attorneys

    Read on Talking Points Memo
  3. [3]Washington Examiner

    Appeals court rules Nevada's top federal prosecutor illegally holds office over lack of Senate confirmation

    Read on Washington Examiner
  4. [4]U.S. Courts

    UNITED STATES OF AMERICA v. GIANN ICOB SALAZAR DEL REAL

    Read on U.S. Courts
  5. [5]EveryCRSReport

    Statutes Governing U.S. Attorney Vacancies

    Read on EveryCRSReport

Comments

Stay informed

Every angle. Every day.

Get law justice stories with full source coverage and perspective breakdowns delivered to your inbox.