In February 1897, the federal justice system in Washington, D.C., ground to a halt. Trials were postponed, new detainees without bail faced indefinite confinement, and a fugitive captured in another state couldn't be extradited. For 22 days, no one held prosecutorial authority in the nation's capital—simply because the U.S. district attorney's term had expired and the Senate refused to confirm a successor.
That episode, now largely forgotten, offers a cautionary tale for today's Justice Department. Currently, ten of the 93 U.S. attorney's offices are leaderless in the formal sense—no presidentially appointed, Senate-confirmed U.S. attorney. Instead, they are being run by first assistants, many of whom are political hires from outside government, installed without Senate confirmation. This arrangement exploits a loophole in federal law that allows the administration to bypass the traditional checks on prosecutorial power.
The Vacancies Reform Act and related statutes provide for interim appointments when vacancies occur, but the administration has repeatedly fired court-appointed interim U.S. attorneys, a move of dubious legality. As a result, these ten offices serve a combined population of roughly 43.2 million people—about 12 percent of Americans live without a chief federal law enforcement officer who has been vetted by the Senate.
Unlike in 1897, these offices haven't shut down. Instead, they are led by first assistant U.S. attorneys, a role that lacks statutory authority. Seven of those leading these offices are not career prosecutors but political operatives brought in from the outside. This effectively allows the administration to handpick leaders for these offices without facing Senate scrutiny, a practice that critics say turns prosecutorial power into a political tool.
Jonathan S. Ross, a visiting assistant professor at the University of South Carolina School of Law and a former court-appointed interim U.S. attorney, argues in an upcoming article for the Wake Forest Law Review that the 1897 view should prevail: without a U.S. attorney, assistant U.S. attorneys lack the power to litigate on behalf of the government. Congress vested prosecutorial power in the attorney general and U.S. attorneys, and assistants derive their authority from those sources.
The current Justice Department, however, contends that the roughly 6,300 assistant U.S. attorneys draw their power directly from the attorney general. That position renders U.S. attorneys superfluous—figureheads who can be removed without consequence. This undermines the long tradition of quasi-independent U.S. attorneys who, though supervised by the attorney general, exercise wide latitude in making prosecutorial decisions that reflect their communities' values.
When offices are run by assistants, they become entirely beholden to the attorney general, opening the door to political micromanagement. The stakes are high: federal prosecutorial power can shape elections, target political rivals, or protect allies. This is not a hypothetical concern, as political blackmail has been alleged in other contexts.
Ross acknowledges that adhering to the 1897 formalism would cause disruption—trials halted, cases delayed. But he asks a pointed question: given the overtly political actions taken by this Justice Department, do the harms of disruption outweigh the dangers of unaccountable power? In 1897, it took only three weeks for Congress and the president to fix the problem. It could be that withdrawing power from these leaderless assistants would force the nomination and confirmation of qualified individuals who can be trusted to fairly exercise prosecutorial authority.
As the administration continues to exploit this loophole, the integrity of federal law enforcement hangs in the balance. The lesson from 1897 is clear: without proper oversight, prosecutorial power becomes a political instrument, not a tool of justice.
