President Donald Trump has used procedural loopholes to install several top federal prosecutors without Senate confirmation, extending their terms through acting or special statuses in multiple districts.
According to a Washington Examiner report, the administration appointed Ryan Ellison as acting U.S. attorney for New Mexico after district judges refused to extend his interim term. This move grants Ellison an additional 210 days, allowing him to lead the office for nearly a year without needing approval from the Senate or courts.
In New Jersey, Trump lawyer Alina Habba faced a similar situation when her interim term as U.S. attorney ended in July and a court appointed her deputy, Desiree Grace, instead. The administration then fired Grace, withdrew Habba's Senate nomination, and reinstated her as acting U.S. attorney, prompting a legal challenge over her authority.
Other districts have seen comparable tactics, such as in the Northern District of New York, where John Sarcone III was named a special attorney with an indefinite term after his initial period expired without a court replacement. This approach circumvents traditional oversight, enabling the Trump team to maintain control over the nation's 93 U.S. attorneys' offices.
In the Central District of California and the District of Nevada, prosecutors shifted from interim to acting status to prolong their leadership without confirmation. These conversions exploit federal rules that permit temporary extensions when permanent nominations stall.
The general process involves appointing unlikely confirmees as interim attorneys for 120 days, then switching to acting or special roles for more time. Critics argue this undermines the checks and balances intended for such powerful positions.
New Mexico Sens. Martin Heinrich and Ben Ray Luján expressed strong disapproval of keeping Ellison in place, stating to Politico that it shows the administration's readiness to override Congress and the judiciary. They view the decision as part of a pattern that diminishes legislative and judicial roles in appointments.
Ellison, however, defended the extension and commended the district judges for not selecting an alternative leader at the end of his interim appointment. He emphasized that U.S. attorney selections should involve cooperative efforts between the executive and legislative branches.
The controversy highlights tensions over executive power, with the Trump administration justifying these steps as necessary to install preferred candidates. Opponents warn that bypassing confirmation erodes accountability in federal law enforcement.
Habba's acting status in New Jersey is under court scrutiny after defendant Julien Giraud Jr., charged with drug and gun offenses, contested her legitimacy. The challenge cites a federal statute barring acting appointments for individuals whose nominations were already sent to the Senate.
The statute explicitly states that a person may not serve as an acting officer if the president submits their nomination for the office. This provision aims to prevent end-runs around Senate vetting processes.
Legal experts like Columbia Law School professor Daniel Richman have voiced concerns about these loopholes, noting that senatorial input has long been vital to the U.S. attorney system. He added that strong ties to local courts, governments, and communities are essential for effective prosecutorial leadership.
President Trump and his administration continue to influence U.S. attorneys' offices nationwide by using interim, acting, and special designations to avoid confirmation hurdles in places like New Mexico, New Jersey, New York, California, and Nevada. These actions stem from a desire to place loyal figures in key roles, often when Senate approval seems unlikely, raising questions about the separation of powers in the U.S. government.
Democratic senators such as Heinrich and Luján argue that these maneuvers trample on congressional and judicial authority, potentially leading to more court battles or legislative reforms to close the loopholes. Legal challenges, like the one against Habba, could set precedents that limit such appointments moving forward.
Experts predict that without local buy-in, these imposed prosecutors might face operational difficulties, as highlighted by Richman's warnings about ignoring community and institutional relationships. Ongoing cases may determine if these strategies hold, possibly prompting broader debates on reforming the appointment process for federal prosecutors.
