Three federal appeals courts have rejected President Trump’s go-to move in trying to install allies as United States attorneys, the officials who lead the prosecutors’ offices in the nation’s 94 judicial districts. In each case, the courts said Trump had violated a law that limits who can run the offices when there are vacancies.
Those decisions have complicated Trump’s efforts to investigate and prosecute his political foes.
The administration this month asked the Supreme Court to review two of the decisions, warning that they “risk chaos” and threaten “to inject mass confusion” into thousands of ordinary cases.
Anne Joseph O’Connell, an expert on the appointment of acting officials at Stanford Law School, said the justices are likely to agree to hear the case. If they do, it could easily turn into a blockbuster ruling on presidential power and again put the court on a collision course with the president.
“I expect that they will take it,” she said, “because it has huge consequences.”
If the court grants review in one or both of the appeals, it is likely to hear arguments in the spring and issue a decision by late June.
The primary question in the cases is whether Trump has complied with a 1998 law, the Federal Vacancies Reform Act. While senior positions in the federal government generally require Senate confirmation, the law sets out some temporary exceptions.
The requirement of Senate confirmation, Alexander Hamilton explained in the Federalist Papers, helps “prevent the appointment of unfit characters” by the president, including those “personally allied to him” and “possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”
Still, someone must run the shop after vacancies arise and before a new official is confirmed. That’s where the 1998 law comes in.
It automatically elevates the No. 2 official in the office — the law calls that person the “first assistant” — to be its acting head. If a U.S. attorney quits, gets fired or dies, the existing second-in-command becomes the acting U.S. attorney for 210 days or longer, depending on how confirmation proceedings for the top job play out.
The president can avoid that default provision by picking someone else to run the office, but that person must be presumptively qualified, either by having already been confirmed by the Senate to a different position or by having recently served in a senior role in the relevant office.
Trump has pursued a different alternative. He sought to name a new No. 2 after the vacancy has arisen, arguing that the 1998 law would then convert that official into the acting U.S. attorney.
Trump’s approach would render the alternatives superfluous and invert the statute’s internal logic, Judge Guido Calabresi wrote last month for a divided three-judge panel of the Second Circuit, the federal appeals court based in New York.
“The incentives such a scheme would create run exactly backward,” he added. “An executive who wanted an unqualified loyalist in an acting role would have no reason to use” the alternatives set out in the law, “which demand Senate confirmation or substantial agency tenure.”
The Second Circuit case involved a second issue — the validity of subpoenas issued by a U.S. attorney’s office run by a Trump pick. One of the subpoenas went to the New York attorney general’s office, which Letitia James has led since 2019. They sought, among other things, “any and all documents relating to” a 2022 lawsuit filed by James accusing Trump and his associates of financial fraud.
James, who ranks high on Trump’s enemies list, won the state fraud case at trial, and an appeal is pending. The federal subpoena seeking information about the case was issued by John Sarcone, who was named first assistant long after the vacancy arose and who claimed that meant he had become the acting U.S. attorney.
The Second Circuit disagreed. “Because Sarcone thus lacked any lawful authority to obtain the subpoenas,” Judge Calabresi wrote, “the district court properly quashed them.”
D. John Sauer, the solicitor general, last week filed a petition asking the justices to table the Second Circuit case and to grant review of an earlier petition in a case from the Ninth Circuit. It presented the same legal questions, he wrote, but it arose from “a more typical fact pattern” involving run-of-the-mill criminal defendants.
The administration did not seek Supreme Court review of a ruling last year from the Third Circuit, based in Philadelphia, disqualifying Alina Habba, a former personal lawyer for Trump whom he had tried to install as the acting U.S. attorney in New Jersey.
Trump did not invent the idea of naming a first assistant after a vacancy arises and then arguing that the 1998 law automatically elevated that person to be the acting head of the office. Other presidents have done similar things, and often.
“The United States is aware of at least 31 examples at Main Justice alone from the Bush, Obama, Trump and Biden administrations,” the Justice Department told the Second Circuit, referring to its Washington headquarters. “There are doubtless many more examples throughout all executive branch agencies.”
Those appointments were not challenged in court. Judge Calabresi, who was appointed by President Bill Clinton and is a former dean of Yale Law School, said that did not matter. “An executive practice that has gone unchallenged for some time,” he wrote, quoting an earlier decision, “does not, by itself, create power.”
The actions of other administrations proved only, he wrote, “that the original mischief the statute was enacted to curtail persisted, not that Congress blessed it.”
Professor O’Connell said Trump’s critics should be careful about what they wished for. Eliminating the president’s ability to install acting officials, particularly after a change in administrations, she said, “would have an asymmetric effect” because an office could be paralyzed if the president is unable to name a new leader whom the Senate would confirm.
“Not being able to have acting officials hurts Democrats more than it hurts Republicans,” she said. “As we’ve seen, Republicans, on average, are willing to let certain agencies not function at all.”
Other Legal News
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A federal judge ordered the White House to restore the press credentials of journalists at CNN, MS NOW and Politico.
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Read the opinion issued early Thursday morning by Judge Timothy Kelly of the U.S. District Court in Washington, who was appointed by Trump.
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A state court judge in Iowa dismissed Trump’s lawsuit against The Des Moines Register over a 2024 poll that showed him trailing Kamala Harris, then the vice president.
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Read the opinion issued Wednesday by Judge Scott J. Beattie of the Iowa District Court for Polk County. “The First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office,” he wrote.
Mailbag
A Strange Delay
Why has no one challenged Judge Cannon in Florida, who put under seal Jack Smith’s case against Trump? What are the chances that information will someday be made public? — Dorothy Dortin
Jack Smith, the special counsel who prosecuted Trump between his two terms, dropped the cases after the 2024 election. But Smith prepared a two-volume report on his investigation. The first volume, concerning charges that Trump tried to subvert the 2020 election, was released in January 2025.
Aileen Cannon, a federal trial judge in Florida who was appointed by Trump, has blocked the release of the second volume, which concerned charges that Trump had mishandled classified documents he had retained from his first term.
The history of that second case is tangled. But the important point is that two watchdog groups, the Knight First Amendment Institute at Columbia University and American Oversight, filed appeals to the 11th Circuit, asking it to reverse Judge Cannon’s ruling — and to move quickly. The appeals court granted a motion to put the case on a fast track.
Oral arguments were scheduled for the week of June 22. Then things got weird. Without explanation, the court kicked the arguments to September. Then to the week of Nov. 2. Then to the week of Nov. 16.
Last week, the appeals court canceled that argument, too, and moved it into next year, scheduling it for the week of Jan. 11. On Monday, the court again postponed the argument, now to the week of Jan. 18.
I found this baffling. The 11th Circuit did not respond to an email seeking comment.
Jameel Jaffer, the institute’s executive director, said that he believed something had gone awry — but he wasn’t sure what exactly.
“The appeals court properly recognized the time sensitivity of this case when it ordered Judge Cannon to rule on our motion for access to the report, and it did so again when it granted our request for an expedited appeal,” he said.
“Especially against that background, the delays in scheduling argument are difficult to understand,” he added. “This report addresses allegations of grave criminality by the nation’s highest official. It’s difficult to think of a document whose disclosure to the public could be more important.”
I would love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at [email protected].
Closing Argument
The Docket Turns Up in a Footnote
A federal appeals court judge in Boston had a little fun in an opinion last week. Writing for a unanimous three-judge panel, she rejected an attempt by the winner of $1.35 billion in the Maine State Lottery to sue under a pseudonym.
The opinion was attributed to a Judge Roe.
Then came a footnote: “Just kidding — Judge Thompson authoring here.”
Judge O. Rogeriee Thompson explained in the opinion that her feint was meant to demonstrate the paramount importance of “the principle of transparency as a bulwark of the effectiveness of our judicial system and the public’s trust in it.”
“A creative little formatting tweak in our opening line,” she added, “is an easy thing we can do to remind the public of the historical scaffolding that undergirds our judicial framework of transparency and public access.”
She rejected the lottery-winning plaintiff’s argument that he deserved special treatment given “the unique risks inherent to being an ultra-high-net-worth individual, especially where, as here, the individual’s increase in wealth is swift and drastic.” Among those risks were “kidnap for ransom” and “solicitation for financial support,” said the plaintiff, identified in the opinion as John Doe.
Judge Thompson’s footnote went on for four paragraphs, but it included only two citations for the proposition that the judicial system should err on the side of openness. Both were to the Aug. 27 edition of this newsletter, which bore this headline: “Secrecy in Lawsuits Has ‘Run Amok,’ Scholars Say.” We’re here to serve.
Please send me your comments on retribution, Judge Cannon, pseudonyms or anything else at [email protected]. See you next week. — Adam
The post Trump’s Retribution Campaign May Face Supreme Court Test appeared first on New York Times.
