The Appointments Clause Avalanche: Why the Appellate Takedown of Interim U.S. Attorneys Threatens Thousands of Federal Indictments

The DOJ’s Succession Problem is Now a Constitutional Crisis

Federal criminal defense attorneys in the Second, Third, and Ninth Circuits just received the procedural equivalent of a golden ticket. According to a September 2026 Reuters report, the Ninth Circuit has ruled that Sigal Chattah is not validly serving as Nevada’s top federal prosecutor. This is not an isolated administrative hiccup—it is the third strike in a devastating appellate trend, following identical conclusions by the Second Circuit regarding John Sarcone and the Third Circuit concerning Alina Habba.

For the Department of Justice, this trio of appellate decisions is an unmitigated disaster. For defense counsel, it is an open invitation to challenge the foundational validity of thousands of federal prosecutions. The executive branch’s long-standing habit of bypassing the Senate’s advice-and-consent function through aggressive use of acting titles and interim designations has finally hit a judicial brick wall. And the fallout will be immediate.

The Statutory and Constitutional Trap

The appointment of United States Attorneys is governed by a strict constitutional and statutory framework. Under 28 U.S.C. § 541, U.S. Attorneys are appointed by the President with the advice and consent of the Senate. When a vacancy occurs, the process is governed by a complex interplay between the Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345–3349d, and 28 U.S.C. § 546, which allows the Attorney General to appoint an interim U.S. Attorney for 120 days, after which the district court assumes the appointment power until the vacancy is filled.

By ruling that Chattah, Habba, and Sarcone are not validly serving, the appellate courts are signaling that recent executive maneuvers to install politically allied prosecutors without Senate confirmation violate these statutory limits, the Appointments Clause (U.S. Const. art. II, § 2, cl. 2), or both. The DOJ has already asked the Supreme Court to intervene to allow the Nevada prosecutor to remain in power, but until the Court grants certiorari and issues a stay, these circuit rulings are binding law.

The FVRA’s Lethal Anti-Ratification Provision

Why does the invalidation of a single U.S. Attorney matter for the rank-and-file Assistant U.S. Attorneys (AUSAs) prosecuting daily dockets? Because federal criminal procedure and the FVRA do not tolerate unconstitutional imposters.

Federal Rule of Criminal Procedure 7(c)(1) mandates that an indictment must be signed by an "attorney for the government." While AUSAs typically sign these documents, they do so strictly under the delegated authority of the U.S. Attorney. If the head of the office lacks constitutional or statutory authority, their delegation of power is fundamentally tainted.

More importantly, if these prosecutors were found to be serving in violation of the FVRA, the statute contains a lethal "anti-ratification" provision. Under 5 U.S.C. § 3348(d)(1)-(2), any action taken by an official improperly serving in a role that requires Senate confirmation "shall have no force or effect" and cannot be retroactively ratified. While the DOJ often argues that the FVRA’s strictures don't apply to delegable duties, an aggressively litigated Appointments Clause challenge cuts straight through that defense.

The Defense Playbook: Attack the Indictments and the Wiretaps

Practitioners representing federal criminal defendants in these jurisdictions must act immediately. The presumption of regularity that usually shields DOJ operations has been shattered. Here is how defense counsel must pivot:

• Rule 12 Motions to Dismiss: Counsel should immediately file motions under Fed. R. Crim. P. 12(b)(3)(B) alleging a defect in the institution of the prosecution. Argue that because the U.S. Attorney was invalidly appointed, the office lacked the constitutional authority to convene the grand jury or sign the indictment. Rely on Lucia v. SEC, 138 S. Ct. 2044 (2018), and United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021), to argue that structural Appointments Clause violations require the dismissal of the tainted proceedings.
• Title III Wiretap Suppression: Under the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2516, applications for wiretaps require authorization by specific, high-level DOJ officials. U.S. Attorneys are heavily involved in the certification and delegation processes for local surveillance. Any defense lawyer with a client facing evidence derived from a wiretap authorized or certified during the tenures of Chattah, Habba, or Sarcone should move to suppress under 18 U.S.C. § 2518(10)(a)(i), arguing the communication was unlawfully intercepted due to invalid statutory authorization.
• Plea Agreement Repudiation: For clients pending sentencing who signed plea agreements authorized by these invalidly serving prosecutors, counsel should explore motions to withdraw the plea under Fed. R. Crim. P. 11(d)(2)(B), citing the structural defect in the government's authority to contract.

Looking Ahead to the Supreme Court

The DOJ cannot survive a fractured system where the nation's top financial and tech jurisdictions (the Second and Ninth Circuits) operate with paralyzed federal prosecutors. The Supreme Court will inevitably take up the DOJ's emergency appeals.

However, the current conservative majority on the Supreme Court has shown deep skepticism toward executive branch end-runs around the separation of powers. In NLRB v. SW General, Inc., 580 U.S. 288 (2017), the Court strictly construed the FVRA against the government, invalidating the actions of an acting general counsel. The DOJ is facing an uphill battle to convince this Court that its procedural shortcuts are constitutional.

Until the Supreme Court rules, defense attorneys have a rare, structural weapon at their disposal. It is time to challenge every signature, every delegation, and every indictment linked to these invalidly appointed prosecutors. The DOJ played fast and loose with the Appointments Clause, and it is the defense bar's job to make them pay for it.