DOJ maneuver on unconfirmed US attorneys inches closer to Supreme Court

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The Hill's Headlines — August 22, 2026

The Hill's Headlines — August 22, 2026

A legal maneuver repeatedly used by the Department of Justice (DOJ) to install acting U.S. attorneys without Senate approval may be inching closer to the Supreme Court. 

Two appeals court panels ruled last week the DOJ cannot sidestep the confirmation process by changing someone’s title or handing them the duties of the top prosecutor.  

It marks another setback for the Trump administration in its efforts to get around federal vacancy laws and elevate loyalists into senior leadership roles. 

Three-judge panels for the 2nd and 9th U.S. circuit courts of appeals had been weighing whether the DOJ’s workaround was legally valid, and both concluded it was not.  

Those rulings affirmed that Sigal Chattah and John Sarcone III were properly disqualified from serving as acting heads of the U.S. attorney’s offices in Nevada and the Northern District of New York, respectively.

The 9th Circuit ruling, decided by two Trump appointees and and appointee of former President George W. Bush, was unanimous. The 2nd Circuit was split 2-1, with a Trump appointee dissenting.  

A spokesperson for the Justice Department told The Hill that it disagreed with the courts’ decisions in both cases and planned to appeal to the Supreme Court.  

Parties generally have a 90-day deadline from the time a lower court judgment is issued to petition the high court for review. The DOJ hasn’t done that yet, and even if it does, there’s no guarantee the justices would hear the case, as they have ultimate discretion over the docket.  

Carl Tobias, a professor at the University of Richmond School of Law, is doubtful the justices would take up the challenge because at least two circuits have already reached the same conclusion, and he suspects others will, too. 

 “That should be enough to tip off the Supreme Court that there’s widespread agreement........

© The Hill