There are few areas where constitutional checks and balances are more important than the selection of US Attorneys, the 93 most powerful federal law enforcement officials across the country. The Trump administration’s installation of US Attorneys without either the vetting process that accompanies Senate confirmation, or the approval of federal judges in the district, violates the separation of powers foundational to our democracy.
The administration’s actions also undermine public confidence that prosecutors are enforcing the law fairly and impartially. A US Attorney who owes allegiance to the president over the Constitution is of particular concern when the president demands retribution against his political enemies and dangles pardons for his supporters.
Historically, US Attorney nominees have experience working in the criminal justice system. Nominees must be entrusted to wield their power without “fear or favor” for who their decisions may please or anger. Because of the discretion and independence the US Attorney must exercise in deciding who to prosecute, the nomination and confirmation process for US Attorneys is crucial.
The Department of Justice’s manual instructs that “the legal judgments of the Department of Justice must be impartial and insulated from political influence. It is imperative that the Department’s investigatory and prosecutorial powers be exercised free from partisan consideration.”
US Attorneys are nominated by the president and must be confirmed by a majority of the US Senate. If the president’s nominee isn’t confirmed, the attorney general may appoint an “acting” US Attorney to serve for a period of up to 120 days, after which the federal judges in the district can appoint a US Attorney to serve until the vacancy is filled.
In 2025, several US Attorneys have been installed by Trump and Attorney General Pam Bondi without regard to this time-honored constitutional process.
In the Northern District of New York, which covers most of the northeast part of New York State, a region including Albany, Bondi appointed John A. Sarcone III “acting US Attorney” after Sen. Chuck Schumer (D-N.Y.) indicated he wouldn’t be returning blue slips for two other US Attorney nominees, a usual prerequisite for a nominee advancing.
When Sarcone’s 120-day interim period as acting US Attorney expired, the office became vacant. New York’s Northern District federal judges then expressly declined to appoint him to the position. Rather than risk watching the Senate reject Sarcone outright, the DOJ appointed him as a “special attorney” and returned him to lead the Northern District office.
The plain disregard and circumvention of the constitutional confirmation process for a US Attorney has occurred in other jurisdictions as well.
In New Jersey, the president appointed Alina Habba, one of his former personal attorneys and a senior adviser for MAGA Inc., a political action committee, to lead the high-profile office, despite having no meaningful criminal law experience.
After 120 days in her interim role, federal judges in New Jersey declined to approve Habba and voted instead to install Desiree Leigh Grace, an experienced federal prosecutor, as acting US Attorney.
Bondi immediately fired Grace and reinstated Habba over the protests of federal judges and the state’s senators.
Habba has the support of the president and the attorney general, but a federal judge said she has no authority to act as US Attorney and cases brought by that office are now in limbo.
This administration is confirming the fear James Madison warned about in Federalist 47, that when the powers of the legislative, executive, and judiciary are in one person’s hands, that action “may justly be pronounced the very definition of tyranny.”
If the country’s justice system is going to operate fairly and justly, lawmakers and judges must reject the executive’s attempts to consolidate power and use their authority to check and balance the president as the founders intended.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.
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Kathleen Sweet is president of the New York State Bar Association and partner at Gibson McAskill & Crosby in Buffalo.
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