A power struggle between President Donald Trump’s Justice Department and the federal judiciary that has built up for months hit a fever pitch in courtrooms across the country last week.
What began as a dispute over a handful of interim prosecutors is now feeding into a broader separation-of-powers clash that seems destined for Supreme Court review, with the central question being whether the president can effectively control who leads U.S. attorney offices when Senate confirmations stall.
The high-stakes dispute is not likely to be resolved by higher court review for months. However, of the 93 U.S. attorney offices, 62 are now being run by interim or acting prosecutors who have not been confirmed by the Senate, leaving much of the federal prosecutorial apparatus under temporary leadership.
Controversial prosecutions in the crosshairs
The most immediate legal test sits in the 4th U.S. Circuit Court of Appeals, where the Trump administration is trying to revive dismissed prosecutions against former FBI Director James Comey and New York Attorney General Letitia James (D).
But that effort is already bogged down.
The appeal, stemming from a November dismissal by Senior U.S. Judge Cameron McGowan Currie, a Clinton appointee, has triggered a flood of filings in recent days. Even so, the case is moving at a slow, deliberate pace that could stretch for months. One attorney involved in the case said oral arguments may not be scheduled until September, nearly a year after the original indictment.
University of Richmond law professor Carl Tobias told the Washington Examiner the delay is not unusual, pointing to the court’s calendar and procedural pace rather than any single strategic decision.
“They don’t sit in the summer for oral arguments except emergencies,” Tobias said. “So it just backs up. That’s just the rhythm of the court.”
That timeline presents a problem for the administration.
Even if Trump’s DOJ ultimately prevails, the drawn-out appellate process risks blunting any political or legal effect of the prosecutions. Appeals court proceedings unfold largely out of public view and are unlikely to surface new evidence, instead focusing on narrow legal questions about the president’s appointment authority and prosecutorial power.
The underlying case against Comey has faced headwinds from the start. A grand jury indicted him over alleged false statements he made during a 2020 congressional hearing, but critics, including several outside groups now weighing in, have described the prosecution as politically motivated and legally weak.
Currie ultimately dismissed the case not on those grounds, but because she found that the interim U.S. Attorney for the Eastern District of Virginia, Lindsey Halligan, had been unlawfully appointed. That same ruling also wiped out the separate mortgage fraud case against the sitting New York attorney general.
The Trump administration is now trying to reverse that outcome on appeal.
In a March 13 reply brief, the government argued that federal law allows the attorney general to make successive 120-day interim appointments when vacancies persist. It also contends that even if Halligan’s appointment were defective, the indictments should stand because she had authority to act as a government attorney and because Attorney General Pam Bondi later ratified the charges.
That appeal is quickly becoming the central battleground in a wider legal fight.
Over the past two weeks, a wave of amicus briefs from former lawmakers, prosecutors, and judges has urged the 4th Circuit to uphold the dismissal, warning that the administration is attempting to sidestep statutory limits on interim appointments. One filing argued the executive branch had “run roughshod” over the rules governing U.S. attorney appointments, while another warned that allowing such practices would undermine public confidence in federal prosecutions.
Some opponents also point to a December ruling from the 3rd Circuit that upheld the disqualification of Alina Habba as acting U.S. attorney in New Jersey, suggesting the 4th Circuit may follow a similar path.
The same institutional tension exploded this week in New Jersey.
During a sentencing hearing on Monday, U.S. District Judge Zahid Quraishi, a Biden appointee, ejected the office’s top appellate lawyer from the courtroom and ordered three officials designated to lead the office to testify under oath about who is actually in charge. The confrontation came just days after another judge ruled that the three-person leadership structure installed after Habba’s disqualification was itself unlawful, although that decision has been paused pending appeal.
“The unconstitutionality of this complete overreach into the Executive Branch, time and time again, will not succeed,” Habba wrote in a March 9 post on X. “They would rather have no U.S. Attorney than safety for the people of NJ.”
Quraishi pressed prosecutors on whether Habba, now a senior adviser to Bondi, still exerted influence over the office. Habba denied running it, while DOJ forcefully defended its view that Trump has the final say on who leads these offices.
“Judges do not pick U.S. attorneys — President Trump does. This Department of Justice will continue to defend our qualified and capable prosecutors who are working to make America safe again,” a DOJ spokesperson said earlier this month.
A battle over executive power
Similar disputes have continued cropping up in federal jurisdictions across the country.
In Utah, interim U.S. Attorney Melissa Holyoak, a Trump appointee who has the support of the state’s two U.S. senators, was moved to a subordinate role after judges declined to extend her tenure despite her pending Senate confirmation.
Tobias said those decisions likely reflect judges sticking closely to the statute and reacting to how the administration has handled past appointments.
“They’re just doing that and following the law as best they can,” Tobias said, pointing to 28 U.S.C. § 546, which gives courts discretion over whether to extend interim appointments. “They ‘may’ [extend it], but they don’t have to.”
He added that judges may also be reluctant to appoint interim leaders only to see them quickly removed. That’s in part due to a recent pattern of judges appointing U.S. attorneys when an interim’s 120-day period has expired, only for those attorneys to be fired via a social media post by Deputy Attorney General Todd Blanche, who maintains that only Trump should decide who leads the 92 U.S. attorneys’ offices across the country.
Tobias suggested the judges in Utah might be trying to say, “Don’t make us appoint somebody and put them on a chopping block within 24 hours,” Tobias said. “Nominate somebody and put them through the process and let the Senate decide.”
In Wisconsin, judges likewise declined to keep former state Attorney General Brad Schimel in place after his interim term expired, opting instead to wait for a Senate-confirmed nominee. Bondi on Thursday gave Schimel a new title, first assistant U.S. attorney, which she said would allow him to continue overseeing the office’s operations.
Taken together, the clashes in Virginia, New Jersey, Utah, Wisconsin, and other states point to a deeper institutional standoff.
In short, Trump’s DOJ is attempting to maintain control over key prosecutorial posts as confirmations stall due to Senate Minority Leader Chuck Schumer’s (D-NY) blanket hold on nominees, while federal judges in multiple districts are signaling they will not rubber-stamp extended interim arrangements. The administration sees that as judicial overreach.
Democrats and other critics of the administration’s strategy counter that the Constitution’s appointments clause includes necessary checks that require “Advice and Consent of the Senate,” which they say the Trump administration is seeking to leapfrog.
Despite these repeated setbacks, there are early signs of movement on the confirmation front in the Senate.
The Senate Judiciary Committee last week advanced the nomination of Melissa Holyoak to serve as U.S. attorney for the District of Utah by a 12-10 vote, along with Phillip Williams Jr. for the Northern District of Alabama. The votes mark incremental progress toward resolving at least some of the vacancies that have fueled the dispute, particularly in Utah, where Holyoak’s interim status has become a flashpoint in the broader fight.
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For now, the Halligan appeal remains the clearest test case, and the administration seems dead-set on appealing it until the Supreme Court decides whether to consider the matter for a merits argument.
But with the Comey prosecution stalled, the Habba dispute similarly subject to higher court review, and similar fights breaking out nationwide, the battle over interim U.S. attorneys is far from over.
