President Donald Trump has just two Senate-confirmed U.S. attorneys in place. That hasn’t stopped him from leaning on unvetted and newly minted prosecutors to harness the power of the Justice Department against his political enemies.
In the Eastern District of Virginia, Lindsey Halligan, a former Trump personal attorney who has never prosecuted a case, on Thursday secured the indictment of former FBI Director James Comey three days after Trump ousted an experienced prosecutor to install Halligan on a temporary basis.
In the Northern District of New York, John Sarcone, also a first-time prosecutor, is investigating New York Attorney General Letitia James, another Trump foe. Sarcone is serving in the U.S. attorney role indefinitely without Senate confirmation because Trump used a procedural maneuver to keep him there even after district judges, empowered to appoint temporary federal prosecutors, declined to name him to the post.
And in New Jersey, another former Trump personal attorney with no previous prosecutorial experience, Alina Habba, is prosecuting a Democratic member of Congress who was attempting to conduct an oversight visit at an immigration detention center. Habba, too, is serving as U.S. attorney indefinitely without Senate confirmation, although the legitimacy of her authority is being challenged.
Around the country, nearly all of Trump’s U.S. attorney nominees have been unable to receive confirmation by the Senate. Some of his nominees are so inexperienced or have a history of so much politicized conduct that they cannot win confirmation even in a Republican-controlled Senate. Other nominees might have enough votes to be confirmed, but Democrats have successfully blocked them.
Without Senate-vetted appointees, most of the country’s 93 U.S. attorney offices are being led by interim leaders — and some of them have displayed far more obedience to Trump, and his desire for retribution, than full-time U.S. attorneys have ever shown to presidents they served under. Historically, U.S. attorneys have tended to guard their offices’ authority to work relatively independently even from Justice Department headquarters and certainly from the White House.
That’s no longer the case in the first eight months of Trump’s second term, said Mimi Rocah, a former federal prosecutor and former Westchester County district attorney. “It’s changing the whole culture of the office,” she said.
“Everything every prosecutor was taught, that’s kind of in their blood, in their culture, from day one — Republican, Democrat — you hear the same language: ‘Do the right thing in the right way for the right reason.’ And that’s what’s changed. It is no longer, ‘do the right thing.’ It’s ‘do what President Trump wants, whether it’s right or wrong,’” said Rocah, who is now an adjunct professor at Fordham Law School.
The Comey case, she said, is a “clear example of that,” as was the Justice Department’s order to dismiss the federal corruption case against New York City Mayor Eric Adams, over the objections of the top prosecutor in the office handling the case.
In theory, the Senate confirmation process ensures that candidates for these powerful posts are thoroughly vetted, with inquiries into their financial, ethical and professional practice histories. But either by design or due to roadblocks in the Senate, Trump so far has effectively discarded the confirmation process, instead installing top prosecutors of his choosing at a moment’s notice and sometimes causing multiple people to head up an office in quick succession.
“They’re in a hurry,” said Carl Tobias, a law professor at the University of Richmond. “They want to get it done, and they don’t want to bother with the niceties of the process, even though it has worked in the past and worked in Trump 1.”
The office now headed by Halligan, for example, had three different U.S. attorneys in charge over four days. After the resignation on Friday of Erik Siebert, reportedly over pressure by Trump to charge James in a separate investigation, Attorney General Pam Bondi tapped conservative lawyer Mary “Maggie” Cleary to fill the role. By Monday, however, Cleary was out, replaced by Halligan.
Trump may soon see a slew of his U.S. attorney picks confirmed, though. Senate Republicans earlier this month changed the chamber rules to allow votes on groups of nominees in one swoop. More than a dozen potential top federal prosecutors are slated for the next round of votes.
The dramatic change, known as the “nuclear option,” will effectively give Republicans a means to go around Democrats’ blanket holds.
That will likely bring Trump up to speed on confirmations beyond the two Senate-confirmed U.S. attorneys who are currently in place: Jeanine Pirro, in the District of Columbia, and Jason Reding Quiñones, in the Southern District of Florida.
By contrast, President Joe Biden had 31 of his nominees confirmed during his first calendar year in office, while President Barack Obama had 30, according to figures provided by the Senate Judiciary Committee. During his first term, Trump himself surpassed both of them, with 46 nominees confirmed during his first calendar year in office.
Harry Litman, a former U.S. attorney and deputy assistant attorney general, said the confirmation process lends stability to both the Justice Department as a whole and to each U.S. attorney’s district.
“At least in normal times, you want the department to be running in a rational, thoughtful, methodical way. That means the implementation of national policies and sound, consistent management,” he said. “And there’s a kind of leadership oomph that a confirmed presidential U.S. attorney has, not just within the office, but with the district court and with the community.”
The administration’s maneuvers have led to legal challenges in some districts over the authority of the temporary U.S. attorneys, jeopardizing their entire criminal dockets.
In New Jersey, a defendant in a drug and gun case argued that the administration’s maneuvering was irregular and unconstitutional and challenged Habba’s authority. Habba was nominated to the post, but she was quickly seen as unconfirmable, so Trump used a series of unorthodox steps to withdraw her nomination while keeping her in the job.
In August, a federal judge disqualified Habba, though that ruling is on pause pending appeal.
In multiple legal challenges on behalf of criminal defendants, federal public defenders are trying to get prosecutions dismissed by questioning the authority of Trump picks in California and Nevada. Their challenges to acting U.S. Attorneys Bill Essayli in Los Angeles and Sigal Chattah in Las Vegas are still pending. Each of the defenders’ initial filings are similar, citing the ruling that disqualified Habba and unresolved questions about the authority of a pair of prosecutors in New Mexico and New York.
Last week, the chief judge in Delaware, Colm Connolly, issued a preemptive order appearing to certify the district judges’ ability to vote in someone of their choosing after the expiration of the 120-day term of the Trump administration’s interim U.S. attorney in that state, Julianne Murray.
Deputy Attorney General Todd Blanche challenged the order in an X post, writing, “I would strongly urge the Chief Judge to revisit our Constitution, particularly Articles II and III. The responsibilities laid out there make clear that appointments of United States Attorneys are first and foremost the duty of the President, not the courts.”
There are also political hurdles. In New York, Trump nominated Jay Clayton to be Manhattan U.S. attorney. Unlike some other Trump nominees, Clayton conceivably could win Senate confirmation — he was previously confirmed by the Senate during the first Trump administration to be chair of the Securities and Exchange Commission.
But in April, Sen. Chuck Schumer said he would use his prerogative to block Trump’s federal prosecutor nominees in New York, arguing that “Donald Trump has made clear he has no fidelity to the law and intends to use the Justice Department, the U.S. Attorney offices and law enforcement as weapons to go after his perceived enemies.”
Trump then named Clayton to the job in an interim capacity, and last month the district judges voted to keep Clayton in the job indefinitely until the Senate confirms someone to the post.
More broadly, Sen. Dick Durbin, with the help of Schumer, has been holding up Trump’s federal prosecutor nominees using what Durbin calls “the Vance precedent,” a reference to Vice President JD Vance’s block of Biden nominees while Vance was in the Senate. The move has meant that Trump’s nominees can be confirmed only by a roll call vote instead of by unanimous consent in a voice vote.
Sen. Chuck Grassley, chair of the Judiciary committee, has decried the move, saying Democrats “have engaged in blanket obstruction of all nominees in their misguided attempt to derail the Trump Administration.”
Grassley added, referring to Vance’s block, that “that limited hold was wrong then, and this blanket hold is even more wrong now.”
Tobias said he is “troubled” by Trump’s lack of confirmed U.S. attorneys.
“We don’t need any more New Jerseys,” he added, referring to the chaos and uncertainty resulting from Habba’s appointment. “That just shouldn’t happen to a district.”
Ry Rivard contributed to this report.