Trump Strategy Relies on Acting, Interim US Attorneys: Explained

The Justice Department is appointing “acting” and “interim” chief prosecutors across the US, raising questions about what the designations are, why the Trump administration is using them, and whether it’s legal.

In some instances, the appointments at least temporarily bypass the Senate confirmation or judicial appointment processes to keep Trump loyalists as their district’s chief law enforcement official.

It departs from decades of presidential selections sailing through without fanfare or controversy—either in the Senate or, for those not taken up by Congress, the federal bench.

Trump’s team, however, has encountered greater resistance from the other two branches of government, and it’s deploying unusual procedural moves to keep their people in office, including through successive “interim” and “acting” appointments.

But the legality of those moves is sharply disputed. A district judge on Thursday ruled the Trump administration’s US attorney in New Jersey, Alina Habba, was unlawfully appointed, in a development that potentially sets up a showdown at the Supreme Court.

What are interim and acting US attorneys?

Presidents often rely on interim and acting leaders of the 93 US attorneys’ offices at the start of their terms, until their preferred candidates can be confirmed by the Senate.

Interim US attorneys are appointed by the attorney general when the position becomes vacant. There are no restrictions on who the Justice Department can select, other than that it may not be a person the Senate “refused.” Under a vacancies law governing US attorney appointments, that person can serve for no longer than 120 days with the interim title.

Acting US attorneys, by contrast, are appointed by the president under a separate law known as the Federal Vacancies Reform Act. This permits officials to serve for 210 days after the vacancy begins, or for 300 days during a presidential transition period, but limits who is eligible to serve in that capacity.

That 1998 law specifically empowers the first assistant of an office to “perform the functions and duties of the office” when a Senate-confirmed official dies, resigns, or is otherwise unable to carry out their duties. The vacancy law also prevents an official from serving as acting if they are also the nominee for the seat, with an exception for officials who spent at least 90 days in the last year as first assistant in that office.

The 210-day clock can restart if a first or second nomination for the seat is rejected by the Senate, theoretically allowing acting US attorneys to serve well over a year.

When and why are courts involved?

Under the statute governing interim appointments, federal district courts may appoint a US attorney in their region when that person’s 120-day term expires and a presidential nominee for the permanent job has yet to be confirmed.

Most of the time, courts re-appoint the attorney general’s pick. And for more standard top prosecutors, such as those with experience as assistant US attorneys, that’s been no different in Trump’s second term. District courts in Eastern Virginia, Manhattan, Maryland, and Chicago have re-appointed the DOJ interim US attorney picks without controversy.

But in the Northern District of New York and New Jersey, judges declined to re-appoint the administration’s temporary US attorney picks as the top prosecutors for their respective regions.

The New Jersey federal court picked a different person, while the Albany federal court opted out of the process.

How did the Trump administration respond?

The administration deployed a series of maneuvers to keep its favored choices in the role, effectively ditching the “interim” title for an “acting” one.

After the New Jersey federal court declined to renew interim US Attorney Habba’s term and picked someone else, the Justice Department fired the court’s selection, had Habba resign, withdrew her Senate nomination, then named Habba first assistant US attorney.

That allowed her to serve in an acting capacity, the administration said, since she was no longer being considered by the Senate and had been appointed first assistant in an office with a US attorney vacancy.

The administration made a similar maneuver in Albany, after the federal trial court declined to extend the interim term for Trump’s pick in that district, John Sarcone. Trump has yet to submit a formal nomination for that seat.

The administration took similar steps in Los Angeles, Nevada, and New Mexico, where benches opted against taking action one way or the other.

Functionally, the judiciary’s silence in those districts still meant that judges weren’t extending the US attorneys’ terms. But the administration did so anyway by converting three Trump loyalists from interim to acting leaders.

Where is the Senate?

It has confirmed US attorney nominees in states including Florida as well as in Washington, DC. But under a custom known as the “blue-slip,” nominees for the post must receive backing from their home-state senators.

That’s put a snag in the process for the Trump administration: Democrat Chuck Schumer of New York, for example, has vowed to block Trump nominees for two US attorney posts in his state.

All five US attorneys that didn’t get judicial approval as their interim terms expired are in states with two Democratic senators. None of them are nominated before the Senate.

The blue-slip hurdle has raised Trump’s ire but Senate Judiciary Chair Chuck Grassley (R-Iowa) has shown no interest in altering the custom.

In 2006, a bill minimized the Senate’s confirmation role by giving the Justice Department authority to appoint interim US attorneys under indefinite terms. But just a year later, that 120-day interim term limit was reinstated, after some lawmakers became outraged over the George W. Bush administration’s firing of eight US attorneys.

Is any of this unusual?

None of New York’s four US attorney offices had Senate-confirmed leaders during the first Trump administration.

The practice also isn’t unique to Trump. The Southern District of Illinois was led by three consecutive temporary US attorneys during the George W. Bush administration.

Still, before Trump took office, it was relatively rare in modern history for the same person to serve in successive terms as acting and interim US attorney.

Jennifer Selin, an associate professor at the Arizona State University Sandra Day O’Connor College of Law who researches US attorney appointments, said she is aware of fewer than a dozen instances between 1987 and 2016 when the same person held both titles consecutively, in either order.

Is This Actually Legal?

Some criminal defendants in New Jersey argue federal prosecutors can’t move forward with charges at the direction of Habba, whom they allege was unlawfully appointed.

Matthew Brann, a federal judge in Pennsylvania, in an Aug. 21 opinion agreed, finding that the administration flouted the law in her appointment.

“Because she is not currently qualified to exercise the functions and duties of the office in an acting capacity, she must be disqualified from participating in any ongoing cases,” he said. Brann said he would stay the effect of his decision pending the resolution of any appeal.

Among the reasons cited in Brann’s opinion are that Habba was not the first assistant at the time of the US attorney vacancy. The Justice Department is expected to challenge the decision at the US Court of Appeals for the Third Circuit.

Defendants have not filed challenges against any other US attorneys.