Sign up for Executive Dysfunction, a weekly newsletter that surfaces under-the-radar stories about what Trump is doing to the law—and how the law is pushing back.
Donald Trump’s Department of Justice quietly caved in one of its biggest brawls with the federal judiciary on Monday, conceding district courts’ authority to appoint U.S. attorneys after a series of stinging legal defeats. In a filing, the Justice Department accepted a court’s appointment of Robert Frazer as head of New Jersey’s U.S. attorney’s office, an abrupt reversal of its assertion that courts have no such power. Its capitulation ended an eight-month standoff during which New Jersey lacked a lawfully serving U.S. attorney after the DOJ refused to replace Alina Habba with a legitimate successor. This (entirely avoidable) leadership vacuum jeopardized myriad criminal indictments and unleashed a wave of chaos that culminated in a federal judge throwing one prosecutor out of his courtroom last week.
The practical consequences of the Justice Department’s surrender are immense. But the deeper implications for the Trump administration’s self-proclaimed “war” against judges are just as important. For the first time, it accepted the federal judiciary’s constitutional prerogative to appoint U.S. attorneys as prescribed by Congress, retreating from its earlier position that only the president can name top prosecutors. This white flag marks the Trump administration’s biggest step back from its maximalist vision of a “unitary executive” who holds total control over his entire branch. It is a begrudging admission that the other two branches of government can still restrain the presidency—proof that the separation of powers is more resilient than Trump had anticipated.
The Justice Department’s struggle to appoint U.S. attorneys stemmed from a mix of obstinance and incompetence. As a rule, these prosecutors are supposed to be nominated by the president and confirmed by the Senate. Under federal law, though, Attorney General Pam Bondi may appoint interim U.S. attorneys who may serve for up to 120 days. If they have not yet been confirmed when their term expires, this law allows federal district courts to replace them with a new U.S. attorney who may serve indefinitely.
Of course, the Trump administration would not have to worry about this backstop if it had picked interim U.S. attorneys capable of Senate confirmation. But instead, it named unqualified partisans, like former Trump personal attorneys Lindsey Halligan and Alina Habba, who could be trusted to prosecute the president’s political opponents but stood no chance of Senate confirmation. When their terms expired, the DOJ concocted workarounds to try to keep Trump’s loyalists in office as “acting” U.S. attorneys—maneuvers that were rejected by courts in Virginia, New Jersey, New York, Nevada, California, and New Mexico.
With these offices vacant, the task fell upon district courts to name interim U.S. attorneys, which they did with admirable professionalism. Until Monday, however, the administration rejected the many court rulings ousting its preferred prosecutors and rebuffed the courts’ authority to replace them. When the New Jersey District Court named Desiree Leigh Grace to succeed Habba, Bondi fired her. When a Virginia District Court named James Hundley to succeed Halligan, Bondi fired him. When a New York District Court named Donald Kinsella to succeed John Sarcone—a former Trump campaign attorney—Bondi fired him. Deputy Attorney General Todd Blanche announced the department’s justification for these rapid removals on X, declaring twice that “judges don’t pick U.S. Attorneys, @POTUS does.” For support, he cited “Article II of our Constitution.”
But the Constitution actually does allow the judiciary to exercise this kind of appointment power. And the Justice Department’s tortured reading of federal law really did violate constitutional restrictions on the president’s authority to staff the executive branch. So for all their bluster in public, Bondi and Blanche were floundering in court as losses piled up. They hit a new low earlier this month after a court ruled against their effort to evade constitutional limits by appointing three different prosecutors to serve as New Jersey’s U.S. attorney. Even though the court threatened to throw out indictments and plea deals signed by this “triumvirate,” the Justice Department refused to replace it with a lawful successor. This defiance prompted U.S. District Judge Zahid Quraishi to unload on career prosecutors last Monday, throwing one out of the courtroom and ordering the “triumvirate” to testify under oath about their illegal leadership structure.
“Generations of assistant U.S. attorneys had built the goodwill of that office for your generation to destroy it within a year,” Quraishi told a prosecutor. “What you’ve told me today, what your representation is … I don’t believe.”
It now appears that Quraishi’s (well-justified) benchslap spurred the Justice Department to finally relent. The agency reportedly acceded to the New Jersey District Court’s appointment of Robert Frazer, a longtime prosecutor, following negotiations behind the scenes. The court’s chief judge installed Frazer on Monday, and he promptly signed paperwork to shore up prosecutions that were imperiled by the illegitimate “triumvirate.” By all accounts, Frazer is well-respected and independent-minded, meaning he is unlikely to charge Trump’s foes with bogus crimes. His appointment marks a total defeat for the administration’s crusade to fill the seat with pliant allies who would weaponize the machinery of federal law enforcement.
The significance of this climbdown is hard to overstate. Since Trump returned to office, his Justice Department has insisted that he has absolute authority to staff the entire executive branch. In its view, the president holds unreviewable discretion over the appointment and firing of subordinates, including leaders of once-independent agencies like the Federal Trade Commission and the Federal Reserve. Over and over again, it has claimed that neither Congress nor the courts can stop Trump from installing or removing whomever he wants from office. The Justice Department’s war over U.S. attorneys was a key part of its quest to transform this radical theory into reality, effectively repealing the judiciary’s long-standing ability to appoint top prosecutors under terms set by Congress. That campaign has now failed. In the face of fierce, unanimous judicial resistance, the administration stood down—proof that there is nothing inevitable about this president’s unlawful consolidation of power.
