Unlawful Appointments: Why Courts Rejected Jack Smith’s And Lindsey Halligan’s Roles — And What It Means

Why Two Federal Judges Found Trump-Era Prosecutors Unlawfully Appointed

Federal judges have concluded that both special counsel Jack Smith and prosecutor Lindsey Halligan were serving unlawfully under the Constitution’s Appointments Clause — but the courts reached those conclusions for different legal reasons.

The Legal Backdrop

The Appointments Clause requires Senate confirmation for certain high-level government posts. Disputes persist over which roles fall under that confirmation requirement and how far the executive branch may place officials without Senate approval.

Smith: A Special Counsel Or A De Facto U.S. Attorney?

In Florida, U.S. District Judge Aileen Cannon dismissed former President Donald Trump’s classified‑documents case after finding that then‑Attorney General Merrick Garland lacked the statutory authority to appoint Smith. Cannon wrote that Smith "does not assist a United States Attorney but ... replaces the role of United States Attorney within his jurisdiction," and warned that approving Smith’s appointment would displace the Senate’s role in confirming U.S. attorneys and risk unchecked executive power.

"[Smith] does not assist a United States Attorney but who replaces the role of United States Attorney within his jurisdiction." — Judge Aileen Cannon

Halligan: A Time-Limited Interim Appointment

In a separate case, U.S. District Judge Cameron McGowan Currie rejected the Justice Department’s defense of Lindsey Halligan’s appointment as interim U.S. attorney for the Eastern District of Virginia. Currie examined the statute that permits temporary 120‑day interim appointments and concluded that the 120‑day clock began on Jan. 21 with the appointment and removal of the prior officeholder, Erik Siebert. When that statutory period expired on May 21, 2025, Currie held, the Attorney General no longer had authority to install a new interim U.S. attorney.

Because Halligan was installed after that expiration, Currie concluded the appointment was invalid and that she had been unlawfully serving since her installation on Sept. 22, 2025.

Different Legal Paths, Same Result

Although both judges reached the same bottom-line finding that the prosecutors were unlawfully serving under the Appointments Clause, their analyses differed. Cannon focused on whether a special counsel effectively supplanted a statutorily created U.S. attorney office, while Currie applied a statutory time limit that governs interim U.S. attorney appointments.

What Happens Next

The Justice Department argued to the court that the two situations are legally distinct: Cannon’s reasoning turned on the absence of a statutorily created office for a special counsel, whereas the Halligan dispute involves the existing office of U.S. Attorney and whether an individual properly filled it. The Biden administration said it would appeal Currie’s ruling but had not filed an appeal as of the most recent reports.

After Currie dismissed the cases against Letitia James and former FBI Director James Comey, he left open the option to refile those matters with a lawfully appointed prosecutor. The DOJ has reportedly sought a new indictment in the James matter and is reportedly considering further steps in related matters.

Broader Implications

Judges across the country have been scrutinizing prosecutors installed without Senate confirmation, and several lower courts have already deemed some such appointments unlawful. The issue could reach the U.S. Supreme Court, which may ultimately decide the scope of the Appointments Clause and the permissible means for installing prosecutors. If the high court takes a case, it may or may not need to resolve Smith’s particular appointment to decide broader questions about interim and special appointments.

Bottom Line: The rulings diverge on legal reasoning but converge on outcome — both Smith’s and Halligan’s appointments were found unlawful by lower courts — and the ultimate resolution may rest with appellate courts or the Supreme Court.