The FVRA Time Bomb: Why the Circuit Consensus on Unlawfully Appointed U.S. Attorneys is a Procedural Goldmine for Federal Defenders

The Department of Justice is Facing an Appointments Clause Crisis

For federal criminal defense attorneys practicing in the Second, Third, and Ninth Circuits, the most important news of the year didn’t come from a substantive ruling on the elements of a crime. It came from a cascading series of appellate decisions invalidating the very prosecutors signing the indictments.

On September 9, 2026, the Trump administration filed an emergency request asking the U.S. Supreme Court to intervene after the Ninth Circuit ruled that Sigal Chattah was unlawfully appointed as the acting U.S. Attorney for the District of Nevada. This was not an isolated appellate anomaly. As Reuters reported, the Ninth Circuit’s decision mirrors devastating rulings already handed down by the Second and Third Circuits, which struck down the appointments of acting U.S. Attorneys John Sarcone and Alina Habba, respectively.

This trifecta of appellate defeats for the Justice Department is much more than a bureaucratic embarrassment—it is a structural defect in thousands of federal prosecutions. By bypassing the Senate confirmation process and running afoul of the Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345–3349d, the administration has handed defense counsel a massive, silver-platter opportunity to challenge indictments, wiretaps, and plea agreements.

The Statutory and Constitutional Defect

To understand why this is a five-alarm fire for the DOJ, you have to look at how U.S. Attorneys are appointed. Under the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, a U.S. Attorney is a principal officer (or at the very least, an inferior officer requiring specific statutory appointment procedures) who must be nominated by the President and confirmed by the Senate. When a vacancy occurs, the FVRA and 28 U.S.C. § 546 provide strict mechanisms for appointing an "acting" U.S. Attorney.

The Second, Third, and now Ninth Circuits have concluded that the administration’s appointments of Sarcone, Habba, and Chattah violated these statutory guardrails. When an acting official is unlawfully appointed under the FVRA, the statute is unforgiving: any action taken by that official "shall have no force or effect" and "may not be ratified." See 5 U.S.C. § 3348(d).

"The administration's attempt to circumvent the Senate and install loyalists outside the statutory order of succession hasn't just triggered a separation-of-powers dispute; it has fundamentally compromised the jurisdictional authority of the federal government to prosecute crimes in these districts."

What This Means for Defense Counsel Right Now

If you are practicing in federal court in New York, New Jersey, Pennsylvania, or Nevada, and your client was indicted during the tenure of these unlawfully appointed U.S. Attorneys, you are committing malpractice if you do not immediately file a motion to dismiss. Here is the playbook:

1. Motions to Dismiss the Indictment: Under Fed. R. Crim. P. 12(b)(3)(A), defendants must raise a "defect in instituting the prosecution" before trial. An indictment signed by an unlawfully appointed U.S. Attorney—or an Assistant U.S. Attorney whose delegated authority stems from that illegitimate source—is structurally defective. The DOJ will inevitably argue that the grand jury, not the U.S. Attorney, issues the indictment. But a federal prosecution must be signed by an attorney for the government to be valid under Fed. R. Crim. P. 7(c)(1). If the delegating authority is void, the signature is void.

2. Attacking Title III Wiretaps: This is where the DOJ is most vulnerable. Under 18 U.S.C. § 2516, wiretap applications require authorization from a highly specific, statutorily defined list of DOJ officials. If an unlawfully appointed U.S. Attorney signed off on the application, or if the chain of delegation is tainted, the fruits of that wiretap are subject to mandatory suppression under 18 U.S.C. § 2515.

3. Challenging Plea Agreements and Immunity Deals: Immunity agreements and non-prosecution agreements (NPAs) bind the federal government. But can an unlawfully appointed officer bind the sovereign? Defense counsel should aggressively scrutinize any deals made during these tenures, while simultaneously using the threat of an FVRA challenge as massive leverage in ongoing plea negotiations.

The DOJ’s Desperate Defensive Strategy

The Justice Department’s September 9 petition to the Supreme Court reveals its strategy: beg for a stay to stop the bleeding while arguing the de facto officer doctrine. The DOJ will rely on cases like Ryder v. United States, 515 U.S. 177 (1995), arguing that even if the appointments were technically defective, the actions taken by these U.S. Attorneys under the color of official title should be upheld to prevent administrative chaos.

Defense lawyers must forcefully reject the de facto officer doctrine here. The FVRA contains an explicit anti-ratification provision (5 U.S.C. § 3348(d)) designed specifically to override common-law saving doctrines. Congress intended for actions taken by unlawfully appointed acting officials to be void ab initio. Furthermore, the Supreme Court has recently shown a strong appetite for strictly enforcing constitutional separation-of-powers boundaries, even when it causes administrative headaches.

The Road Ahead

The Supreme Court will almost certainly grant certiorari to resolve this crisis, given the DOJ’s emergency request and the sweeping implications for the federal criminal justice system. But until the Justices rule, the Second, Third, and Ninth Circuits are bound by their respective decisions invalidating these appointments.

For defense attorneys, this is a rare, systemic vulnerability in the federal prosecutorial machine. Do not wait for the Supreme Court to bail out the Justice Department. File your Rule 12 motions, challenge the wiretaps, and force the government to prove it had the lawful authority to put your client in handcuffs in the first place.