President Trump’s announcement that he was making the Fox News host Jeanine Pirro the interim U.S. attorney in Washington has raised questions about whether he had legitimate legal authority to do so.
Under a federal law, the attorney general can appoint an interim U.S. attorney for up to 120 days. But soon after taking office in January, the Trump administration installed a Republican lawyer and political activist, Ed Martin, in that role.
The question is whether presidents are limited to one 120-day window for interim U.S. attorneys, or whether they can continue unilaterally installing such appointees in succession — indefinitely bypassing Senate confirmation as a check on their appointment power. Here is a closer look.
What is a U.S. attorney?
A U.S. attorney, the chief law enforcement officer in each of the 94 federal judicial districts, wields significant power. That includes the ability to start a criminal prosecution by filing a complaint or by requesting a grand jury indictment. Presidents typically nominate someone to the role who must secure Senate confirmation before taking office.
What is an interim U.S. attorney?
When the position needs a temporary occupant, a federal statute says the attorney general may appoint an interim U.S. attorney who does not need to undergo Senate confirmation. The statute limits terms to a maximum of 120 days — or fewer, if the Senate confirms a regular U.S. attorney to fill the opening.
Is the president limited to one 120-day window?
This is unclear. The ambiguity underscores the aggressiveness of Mr. Trump’s move in selecting Ms. Pirro. Senator Richard J. Durbin of Illinois, the top Democrat on the Senate Judiciary Committee, said that Democrats on the panel “will be looking into this.”
“Naming yet another interim U.S. attorney for D.C. is an untested and unprecedented use of the interim appointment authority that is contrary to congressional intent, undermines the Senate’s constitutional advice and consent role and could subject the interim appointee’s actions to legal challenge,” he said in a statement on Friday.
There are two conventional understandings of what might happen 120 days after the appointment of an interim U.S. attorney if the Senate still has not confirmed anyone. Each carries potential limits for Mr. Trump. The installation of Ms. Pirro suggests he is trying to establish a third option that would give him broader power.
What’s the judicial option?
According to the law, if an interim appointment expires after 120 days, the district court can appoint a U.S. attorney until the vacancy is filled.
This option could result in the appointment of a U.S. attorney the president does not like. That, in turn, raises the question of whether the president could fire that person, a topic that is somewhat contested.
Normally in the law, the official who appoints is the one who can fire. But the Justice Department’s Office of Legal Counsel, in a 1979 opinion, concluded that while an attorney general may not remove a court-appointed U.S. attorney, the president does have that power.
In 2018, the Trump administration ousted the U.S. attorney in Manhattan, Geoffrey S. Berman, who had first been appointed on an interim basis by the administration before being reappointed by a court. Attorney General William P. Barr tried to fire him, but Mr. Berman balked until Mr. Trump himself removed him. Mr. Berman did not challenge his firing in court.
What’s the acting option?
The Vacancies Reform Act generally addresses how presidents may temporarily fill open positions that normally require Senate confirmation. It allows the president to designate certain people as acting officials.
It is not clear whether a president who installed an interim U.S. attorney can follow that move by appointing an acting one, further avoiding a judicial appointment or Senate confirmation. But in a 2003 opinion, the Office of Legal Counsel concluded that Congress gave presidents the power to do so.
Still, Mr. Trump’s choices would be constrained. Someone selected for an acting role must already be serving in another Senate-confirmed role, or have been in a senior position at the same agency for 90 days before a vacancy. As a result, Mr. Trump cannot install outsiders like Ms. Pirro as acting U.S. attorneys.
What’s the third option Ms. Pirro’s appointment raises?
By naming Ms. Pirro, Mr. Trump appears to be trying to establish that he has the power to make successive interim appointments for U.S. attorneys, indefinitely bypassing the Senate confirmation process.
The administration has not explained its legal theory. But legal experts have pointed to a likely argument that would support its action. It relies on a potential loophole in the law’s text.
For one, the law does not expressly forbid successive interim appointments. For another, it says the court’s power to name the next temporary U.S. attorney is triggered when an interim appointment “expires” after 120 days. But Mr. Trump ousted Mr. Martin shortly before he reached his 120th day, so his term never expired.
A literal interpretation of the text, which arguably disregards the purpose and intent of Congress, could conclude that it permits successive appointments of interim U.S. attorneys who could each get a fresh 120-day window if they leave before their terms expire.
Are there any legal guideposts?
Since the 19th century, courts could temporarily fill vacant U.S. attorney positions. But the attorney general’s ability to first appoint an interim one dates only to a November 1986 law. There is no definitive Supreme Court ruling interpreting the law, but it has occasionally drawn attention.
A footnote in an Office of Legal Counsel opinion about interim U.S. marshals says that in November 1986, Samuel A. Alito, then a lawyer in the office, wrote an opinion “suggesting that the attorney general may not make successive interim appointments.”
That opinion by the future Supreme Court justice does not appear to be public. It is not clear whether the office ever revisited the topic in other opinions the Justice Department has kept private.
A passing comment in a 1987 opinion by a federal judge in Massachusetts — in a case involving acting U.S. attorneys, not interim ones — cuts the other way.
“Although the drafters appeared to envision that the district court would act at the expiration of an interim appointment,” the judge wrote, “it is not clear from this court’s reading of the statute that the attorney general himself would be foreclosed from making a second interim appointment.”
There appear to have been a few successive interim appointments in the past, but they did not seem to attract much attention or lead to precedent-setting court tests.
In 2007, when Congress last altered the interim U.S. attorney law, the Congressional Research Service told lawmakers that it had identified several instances of successive interim appointments, including one person who “received a total of four successive interim appointments,” according to a House report about that bill. The report did not contain specific details.
What’s the risk?
For one, Mr. Trump is opening the door to a scenario in which the enforcement of criminal law in Washington — and in any other district where he repeats this move — could be disrupted.
People who are indicted for crimes in cases that Ms. Pirro approves could challenge their charges on the grounds that she was improperly appointed. Should the Supreme Court rule against the administration, the result would call into question every case she signed off on.
A similar situation happened last year, when a federal judge in Florida threw out a criminal case against Mr. Trump on the grounds that the special counsel prosecuting him, Jack Smith, had been improperly appointed. In 2020, a court struck down certain actions by the Department of Homeland Security, ruling that Mr. Trump had unlawfully appointed Kenneth T. Cuccinelli II to lead U.S. Citizenship and Immigration Services.
Should the Supreme Court side with the administration, presidents would face no clear limit on their ability to bypass Senate confirmation and serially install such prosecutors — not just in Washington, but across the country.
