The Ninth Circuit — Two Trump Appointees Among Them — Rules the Attorney General Cannot Install Unconfirmed U.S. Attorneys by Naming Them "First Assistant" to a Job That Is Already Vacant

August 17, 2026

On August 17, 2026, a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed a district court order disqualifying Sigal Chattah from running the U.S. Attorney's Office for the District of Nevada, holding that the Justice Department's workaround for keeping unconfirmed prosecutors in place is unlawful. Writing for the panel, Judge Eric Miller — a Trump appointee, joined by fellow Trump appointee Stanley Blumenfeld and Clinton appointee Sidney Thomas — framed the question directly: "These cases present the question whether the Attorney General can make someone an Acting United States Attorney — bypassing the usual requirement that a U.S. Attorney be confirmed by the Senate — by designating that person as the first assistant to an already-vacant office of U.S. Attorney. We hold that the Attorney General cannot do so." Under the Federal Vacancies Reform Act, the panel held, automatic succession runs only to a first assistant who already held that post when the vacancy arose. Chattah was named interim U.S. attorney in 2025 under 28 U.S.C. § 546 after Jason Frierson resigned, and was never confirmed — Nevada's two Democratic senators blocked her, citing her record as an election denier. When her 120-day interim term ran out, the department designated her first assistant so she could serve as acting U.S. attorney indefinitely. The Ninth Circuit is the second appeals court to reject that maneuver, after the Third Circuit ruled against Alina Habba's tenure in New Jersey. A Justice Department spokesperson said the department disagreed with the ruling and would appeal to the Supreme Court.