The Three Hat Dance Continues
AG Bondi keeps trying and failing to make Trump's henchmen US Attorneys.
In 2025, Donald Trump failed to bully Senate Judiciary Chair Chuck Grassley into ditching the blue slip rule. Requiring home state senators to bless nominees for US Attorney is highly inconvenient when you need prosecutors willing to bring flimsy, politically-motivated cases against your blue state enemies. And so Attorney General Pam Bondi spent much of the year trying to shoehorn Trump’s cronies in without Senate confirmation.
In the end she settled on a “Three Hat” dance™ that involved: an interim 120-day appointment (Hat 1); installing the crony as first assistant, triggering an automatic promotion to fill the vacant US Attorney position (Hat 2); and naming the crony as special counsel (Hat 3).
Trial judges in New Jersey, Nevada, California, New York, Virginia, and (just last night) New Mexico, along with the Third Circuit have stepped on all three hats, calling them an illegal effort to evade the Senate’s advise and consent function, and for a while it looked like Bondi knew the jig was up. But then in December she went right back to jamming the damaged hats back on the heads of various Trumpland goons.
You don’t have to go home, but you (and your dumb hats) can’t stay here
Bondi’s gambit relied on three separate statutes. The first is 28 USC § 546, which permits the attorney general to appoint an interim US Attorney for 120 days. The DOJ argued that the attorney general can make successive 120-day appointments, even of the same person. But every court to consider the matter disagreed, finding that the law allows for one, and only one interim appointment, after which the position can only be filled by a Senate-confirmed candidate or someone chosen by the district’s judges.
Second, Bondi relied on the Federal Vacancies Reform Act, which allows the first assistant to take over as Acting US Attorney for a period of 210 days when the position becomes vacant. By naming the cronies as first assistants and allowing them to be automatically “promoted,” Bondi endeavored to buy them another seven months in office. But courts uniformly rejected this ploy, finding that § 546 is the exclusive means of filling such a vacancy.
Finally, Bondi named the cronies as special attorneys, like Special Counsels Smith and Mueller, pursuant to 28 USC § 515. Here again courts said that, while Bondi can appoint anyone she wants under § 515, she can’t delegate all the authority of a Senate-confirmed US Attorney to a special counsel.
In a rational world, Bondi would have simply gone about her business and left the US Attorney positions empty in blue states. Cronies installed as first assistants or special counsels have sufficient authority to pursue the political prosecutions Trump demands. That was good enough for Bill Essayli in Los Angeles and Sigal Chattah in Nevada, both of whom simply switched to calling themselves “First Assistant” US Attorneys when courts disqualified them from the top job.
But the Trump administration treats every interaction like a dick-swinging contest, and so it refused to accept the sane compromise.
