The U.S. Department of Justice (DOJ) is considering an appeal to the Supreme Court after two federal appeals court panels ruled last week that the department cannot install acting U.S. attorneys by bypassing the Senate confirmation process. The panels for the 2nd and 9th U.S. Circuit Courts of Appeals determined that the DOJ may not use title changes or the delegation of duties to keep unconfirmed officials in top prosecutor roles beyond statutory limits.
The rulings center on the Federal Vacancy Reform Act of 1998 (FVRA), which dictates how federal vacancies are filled. Under the law, U.S. attorneys must be nominated by the president and confirmed by the Senate. When a vacancy occurs, the attorney general may appoint an interim successor for up to 120 days. The recent court challenges involve instances where the DOJ attempted to extend the tenure of these officials by designating them as "first assistants" or "special attorneys" after their 120-day terms expired.
The 9th Circuit ruling, which was unanimous, specifically disqualified Sigal Chattah from serving as the acting U.S. attorney for Nevada. Judge Eric Miller wrote that the FVRA does not allow the executive branch to fill a vacancy by designating a new first assistant who did not serve under a validly appointed official. In a separate 2-1 decision, the 2nd Circuit reached a similar conclusion regarding John Sarcone III in the Northern District of New York. A DOJ spokesperson stated the department disagrees with these rulings and plans to petition the Supreme Court for review.
For individuals involved in the federal legal system, the rulings have led to the dismissal of criminal cases and the blocking of grand jury subpoenas. For example, a judge in the Eastern District of Virginia dismissed cases against former FBI Director James Comey and New York Attorney General Letitia James after ruling that Lindsey Halligan had been unlawfully appointed. The scale of the impact includes all defendants in cases supervised by these unconfirmed prosecutors, as their legal authority to bring charges or issue subpoenas has been successfully challenged in multiple jurisdictions.
The legal precedent set by these cases limits the power of the Attorney General to delegate the "functions and duties" of a U.S. attorney to anyone who has not undergone the formal confirmation process. If the Supreme Court declines to hear the case or upholds the lower court rulings, the administration will be required to submit formal nominations to the Senate to fill these vacancies. The DOJ has approximately 90 days from the date of the judgments to file a petition with the Supreme Court. Meanwhile, the 4th Circuit is scheduled to hear a related dispute next month regarding the Eastern District of Virginia.