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The exact mirroring is eerie, though. Some of Jack Smith's cases against Trump got dismissed because his appointment was considered unlawful by the District Judge (and Clarence Thomas).
It did ultimately lead to the clusterfuck that's happening now, though. If Bondi could have appointed a special counsel to investigate Trump's enemies, she likely would have done so. But because of the Smith decision, she had to push the interim appointments laws beyond where the court was willing to take them and throw the district offices into disarray as a consequence. There is effectively no one in charge of four offices at this point, though I can imagine that the career supervisors there will keep things running in the meantime, at least as far as routine matters are concerned.
Aren't courts supposed to appoint US attorneys if the AG's choices can't secure Senate confirmation?
There is a real question about separation of powers where the court appoints an executive officer.
There's a real question about separation of powers if a President tries to appoint principal officers without the consent of the Senate.
Or if there's no one to actually run the US Attorney's office.
There's no way around the dysfunction. Congress tried to craft a compromise (muddle) solution.
https://reason.com/volokh/2025/07/26/appointment-of-interim-u-s-attorneys/
I don't buy that argument. The statutory text makes clear that after the 120 day term expires (c2), then (d) the district court appoints until the vacancy is filled. What would the point of an expiration be if the AG just gets to repeatedly re-fill it? The entire (c)(2) provision would be surplussage.
That said, maybe the Supreme Court looks at 28USC§546 and decides the way Prof Calabresi argues here. I just don't see it.
The statutory text you cite is likely unconstitutional as Prof Calabresi argues since the power to appoint executive officers is vested solely within the president or department heads. Therefore a textual analysis is arguably besides the point.
The provision you mention under (d) is a may; not a shall. So it doesn’t seem like the power is wrested from the executive.
Calabresi is making the argument that the same person can be given connective 120 day appointments. But it’s even a stronger argument that different persons can be given consecutive 120 day terms (ie the president or AG doesn’t lose the power to make the appointment).
Otherwise, you permit a small minority in the senate to give unfettered executive power to a judge allowing him to appoint an AUSA within his district. That doesn’t make sense in light of our checks and balances.
Therefore at minimum a constitutional avoidance reading should apply to state that the executive can appoint a second person to the office. He did so here.
For all those words, the niggling constitutional problem that the good professor doesn't address is the fact that such an interpretation would render the Appointments Clause meaningless, as the president could effectively avoid Senate confirmation permanently by just renewing the appointments every 120 days. But there's a larger practical problem; if court appointments are unconstitutional, as he says they are, then any US Attorney who has been so appointed does not have the authority of the office. At present, this is the vast majority of US Attorneys in the country. If the Supreme Court rules as the good professor wants them to, do you think that being forced to vacate nearly every Federal indictment since this summer (and a lot of rulings on cases that were indicted before them) is a good tradeoff to confirm the authority of fucking Lindsey Halligan?
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