Trump Tests Appointment Power With Pirro Pick for DC US Attorney

President Donald Trump’s decision to tap another interim US attorney in Washington tests the bounds of a federal statute governing temporary officials and reflects a growing trend of presidents leaning on temporary appointments for top roles.

Former Fox News host Jeanine Pirro was sworn in Wednesday as the next interim US attorney for the District of Columbia, after Trump pulled the nomination of Ed Martin, who served in the same role since January but failed to gain enough Republican support to win Senate confirmation.

Pirro’s appointment appeared intended to avert a situation where the D.C. federal trial court would select its own temporary replacement after Martin’s 120-day term expired, and a key Senate Democrat has indicated he sees the maneuver as improper.

Still, legal experts say that while the move may open the door to a legal challenge, Trump’s decision to tap successive temporary officials isn’t uncommon and possible efforts to fight it are unlikely to succeed.

“Like Trump, presidents have become much more strategic with this,” said Jennifer Selin, an associate professor at the Arizona State University Sandra Day O’Connor College of Law who researches US attorney appointments. “And for all appointments, it does raise questions about the balance of power in our government and how much power the executive has.”

Trump has used his second term to test his authority over personnel across the government. He’s fired top Democrats at agencies including the Federal Trade Commission, despite Supreme Court precedent preventing the executive from firing members of independent agencies without cause such as inefficiency or neglect.

By contrast, Pirro’s appointment could open the door for defendants facing charges from the DC US attorney’s office to test Trump’s powers, said Jonathan Shaub, a University of Kentucky law professor who worked in the White House counsel’s office during the Biden administration.

Defendants “certainly have a reasonable argument to raise here, in part because” of some “ambiguity” in the law, he said. But courts would be hesitant to intervene given precedent granting a president broad appointment powers, Shaub added.

Prosecutor Appointments

Senate Democrats have signaled they’re eyeing the latest succession tactics for a possible challenge.

Sen. Dick Durbin (D-Ill.), the ranking Democrat on the Senate Judiciary Committee, during panel meeting Thursday called it a “a daisy chain situation” and “a violation of what we were trying to achieve” with interim appointments. He said on social media May 9 that this “an untested and unprecedented use” of this power that his office would “be looking into.”

A federal statute says a person named interim US attorney can serve for no longer than 120 days after their appointment. Once that appointment expires, a district court “may appoint a US attorney to serve until the vacancy is filled.”

Such circumstances would allow for a temporary chief prosecutor to be in the role until the Senate confirms the president’s formal pick to be in the job. It’s not clear, however, whether Trump plans to pick someone else or put Pirro’s nomination before the Senate Judiciary Committee.

That law doesn’t explicitly prohibit successive interim appointments, said Anne Joseph O’Connell, a professor at Stanford Law School who specializes in political appointments.

The Federal Vacancies Reform Act, a separate 1998 law governing how the executive branch may temporarily fill openings that require Senate confirmation, contains a provision invalidating any actions from a person who is serving in their role improperly. However, no such penalty is contained in the law governing US attorney succession, she noted.

“A challenge could be brought,” O’Connell said. “I don’t think it would succeed.”

Pirro, if nominated formally, appears more likely to win approval in the Republican-controlled Senate, making further temporary appointments for the role less likely to be needed.

Durbin said in an interview Thursday that “very little is going to change” unless Republicans join Democrats to assert the Senate’s authority to approve nominations.

“Trump has shown over and over again he’ll push us when it comes to the constitutional authority of our branch of government,” he said.

Trump’s Temporary Officials

Trump’s interest in using temporary officials in important roles dates back to his first administration, when three successive officials temporarily led the Department of Homeland Security, after Trump’s first Senate-confirmed pick stepped down in 2019.

This practice ultimately backfired in court: federal judges found that two of those acting secretaries and a third Homeland Security official were found to be improperly serving under various succession rules and struck down immigration restrictions they’d issued.

Past presidents have similarly stretched the bounds of various vacancy statutes to keep acting and interim chief prosecutors in office. Selin said her research has shown an increase in the use of acting and interim US attorneys since 1970 as the time it takes for the Senate to confirm those nominees has increased.

During the George W. Bush administration, the Southern District of Illinois was led by three consecutive temporary US attorneys. Ed McNally served as interim US attorney, followed by Randy G. Massey as an acting US attorney under a separate vacancy law, followed by another interim, A. Courtney Cox, who was appointed by the federal court’s judges.

Federal judges have rejected prior attempts to challenge prosecutions based on claims that a court-appointed temporary US attorney violated the Constitution.

The US Court of Appeals for the First Circuit ruled against an effort in 2000 by a criminal defendant to contest his indictment in Puerto Rico, where the court-appointed interim attorney had served over six years, after finding the statute’s language didn’t bar it.

A New Mexico federal trial court in 2009 rejected a similar challenge, finding that a court’s appointment of a US attorney is within the bounds of the Constitution’s appointments clause and separation of powers.

“I think that the courts would go the same way, as they have in the past,” Selin said.