The Ninth Circuit affirmed a district court decision that Sigal Chattah was not lawfully serving as acting U.S. attorney in Nevada and barred her from supervising three prosecutions. Judge Eric D. Miller wrote that the Attorney General cannot bypass Senate confirmation by designating a person as first assistant to a vacant U.S. Attorney's office. The Department of Justice says it will seek review by the Supreme Court. The ruling echoes a similar decision in New Jersey involving Alina Habba.
Ninth Circuit Blocks Trump-Appointed Nevada U.S. Attorney, Upholds District Court Disqualification
Las Vegas Review-Journal / TNS
A federal appeals court on Monday affirmed a lower court's ruling that a Trump-appointed acting U.S. attorney in Nevada was not lawfully serving and must be disqualified from supervising certain prosecutions.
The U.S. Court of Appeals for the Ninth Circuit, in an opinion written by Judge Eric D. Miller, upheld a district court order removing Sigal Chattah from oversight of three criminal cases and invalidating her appointment as acting U.S. attorney for the District of Nevada.
The Senate confirmed Miller to the Ninth Circuit Court of Appeals in February 2019. / Tom Williams / CQ-Roll Call, Inc via Getty Imag
Background
Chattah, a former political ally of the Trump administration, was named interim U.S. attorney last April by then-Attorney General Pam Bondi. That interim designation was limited to a statutory 120-day term. Shortly before that term expired, Chattah resigned and was then designated by Bondi as the office's first assistant—allowing Bondi to name her acting U.S. attorney under the first-assistant provision and extend her service without Senate confirmation for an additional statutory period.
Legal Challenge and Ruling
Federal defense attorneys representing three Nevada defendants challenged the maneuver, arguing the statutory interim term had lapsed and that the first-assistant designation could not lawfully be used to extend an acting U.S. attorney's tenure after the interim period ended.
Nevada Republican U.S. Senate nominee Adam Laxalt (L) poses with Nevada Attorney General candidate Sigal Chattah for a group photo during a
"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," Judge Miller wrote. "We hold that the Attorney General cannot do so."
The Ninth Circuit therefore affirmed the district court's disqualification order, barring Chattah from supervising the three prosecutions at issue.
Department of Justice Response and Broader Context
A Justice Department official told the Daily Beast the department "disagree[s] with the 9th Circuit's decision and we plan to appeal this decision to the Supreme Court."
Habba was removed from her role nearly as quickly as she was put in it. / Evelyn Hockstein / REUTERS
The ruling follows a similar decision in New Jersey last year, where a judge found that Alina Habba—another Trump-associated appointee—had been unlawfully serving as that state's acting U.S. attorney after a comparable extension. Habba publicly disputed that ruling at the time, saying she was "the pick of the president" and criticizing what she called judicial overreach.
This series of decisions raises questions about the limits of the Attorney General's authority to fill U.S. attorney vacancies by designation and underscores the courts' role in policing statutory appointment rules designed to preserve Senate confirmation as a check on executive appointments.
Help us improve.
