Utah Lacks a U.S. Attorney Because of Presidential Dithering, Not Judicial Usurpation

I’m an enthusiastic admirer of Michael Fragoso’s work, but I’m puzzled by his piece today, “A Judicial Coup in Utah.” He argues that Melissa Holyoak, formerly of the Federal Trade Commission, has not been appointed as the district U.S. attorney in Utah due to “quite simply a usurpation by the judiciary, not only of the president’s power but also the Senate’s.” To the contrary, it is the Trump administration that has dropped the ball here.

I’d never heard of Ms. Holyoak before reading Michael’s post. Her credentials are strong; although she was confirmed on a party-line vote, that’s pretty standard these days, and it appears that committee Democrats objected on policy grounds, not over her acumen or scruples. It is unsurprising that the two Republican senators in Utah (Mike Lee and John Curtis) support her. With 53–47 GOP control of the Senate, she should be confirmed without much difficulty.

But why didn’t the president nominate her a year ago?

The reporting is a bit sketchy, but it appears that a month after taking office in January 2025, rather than nominating Holyoak or another qualified lawyer, the president had his Justice Department install Felice (John) Viti as the acting U.S. attorney for Utah; Viti had been a top executive in the office of the Senate-confirmed U.S. attorney (a Biden appointee but one who could only have been confirmed with the indulgence of the state’s two Republican senators — Lee and, at the time, Mitt Romney).

The president was content to leave that arrangement in place for nine months. It was not until November 17, 2025, that Holyoak was finally installed as interim U.S. attorney by Attorney General Pamela Bondi. Then, despite Holyoak’s obvious qualifications, the president waited more than two months to nominate her. According to the Trump Justice Department, that finally happened on January 29, 2026. As the administration well knows, interim appointments are limited by statute to 120 days, so the president’s delay virtually guaranteed that Holyoak could not be confirmed before the interim appointment expired.

There are dozens of nominations pending and limited congressional time. Given the snail’s pace at which it usually operates, the Senate moved with admirable alacrity in getting Holyoak’s nomination through the Judiciary Committee. But that happened just six days ago.

Meantime, the president and the Senate have decided that the so-called SAVE America legislation is a higher priority than confirming a U.S. attorney for Utah. I’m not a fan of the SAVE Act — and I commend to you Michael Fragoso’s excellent analysis of its flaws — so that would not have been my order of priorities. But to be fair, those making the decision could have calculated that, because Holyoak is already functioning as the first assistant U.S. attorney and effectively running the office anyway, it’s not the end of the world if she has to wait a few more weeks to be confirmed.

Whatever you think of the decision to prioritize debating the SAVE Act over confirming Holyoak, it was the decision made by the political branches vested by the Constitution with authority over appointments. And only the president and his advisers are responsible for the year of delay in nominating a qualified candidate. That delay is the reason the nomination has run up against action on the SAVE act.

What I really don’t understand, though, is Fragoso’s contention that the court is usurping the constitutional authority of the other branches. It’s possible that the court has nothing to do with this; but even allowing that Fragoso may be correct in inferring otherwise, the court has merely exercised statutory authority conferred on it by Congress.

Although the Supreme Court has never ruled on the matter, the general consensus is that district U.S. attorneys are inferior officers. Under the Constitution’s appointments clause (art. II, §2, cl,2), Congress may vest the appointment of inferior officers “in the President alone, in the Courts of Law, or in the Heads of Departments.”

With respect to appointing district U.S. attorneys in the normal course, the courts have nothing to do with the matter. Instead, Congress has provided that U.S. attorney appointments must mirror those of superior officers — i.e., nomination by the president and confirmation by the Senate. (See Section 541 of Title 28, U.S. Code.)

Yet, recognizing that there may be contingencies that call for important positions to be filled on a temporary basis, Congress has also provided for interim U.S. attorneys. That is where the courts get involved, as a stopgap pursuant to statute. Interim U.S. attorneys are inferior officers; Congress has exercised its constitutional authority to vest their appointment, first, in the head of the relevant department, the attorney general, and then, as a last resort, to the federal district court.

If Congress made the interim period too long or allowed the executive branch, rather than the court, to extend it, then the president could use interim appointments to circumvent the preferred Senate confirmation process — as Trump has tried to do. Hence, under the relevant statute (Section 546 of Title 28, U.S. Code), the AG may appoint an interim U.S. attorney for only 120 days. When that term lapses, the judges of the relevant district’s court may, but are not required to, “appoint a United States attorney to serve until the vacancy is filled” (presumably, filled by a presidentially nominated, Senate-confirmed appointee).

Importantly, if the court decides to appoint a U.S. attorney, it is not required to appoint the interim U.S. attorney whose term has elapsed; it may appoint a U.S. attorney of its own choosing.

Consequently, when the district court appoints a U.S. attorney to fill a vacancy in that post, or in its discretion declines to do so, it is exercising power expressly granted it by Congress. It is not usurping the constitutional authority of either the president or the Senate; they remain fully vested with power, respectively, to nominate and to confirm an appointee. And in fact, once they’ve exercised that power, their appointee supplants any court-appointed U.S. attorney.

Now, let’s back up: Do we even know whether the Trump Justice Department asked the district judges to vote on retaining Holyoak as the U.S. attorney once her 120-day interim term lapsed (which I think happened in the last few days)?

I’ve looked for reporting on this and have been unable to find any. I intuit that Fragoso doesn’t know either since he says we should “deduce that the [judges of] the District of Utah declined to appoint Holyoak as U.S. attorney following the expiration of her interim term” — he doesn’t claim to know for sure that that’s what happened.

He may be right, but that’s not the only possible rational inference. It could be that the Trump DOJ didn’t ask.

As I’ve covered extensively (see, e.g., here), the president has made U.S. attorney confirmations a fraught issue by irresponsibly attempting to circumvent the Senate confirmation process. This has needlessly dragged the courts into contentious questions about the legitimacy of non-confirmed appointees and the viability of prosecutions they supervised.

There have been a number of instances when district judges were asked to extend Trump DOJ-appointed interim U.S. attorneys. On one, Erik Siebert in the Eastern District of Virginia, after the judges approved him at the administration’s request, the president fired him for being unwilling to indict weak cases against Trump political enemies. On others — including some of such dubious credentials that the president hesitated to submit them to the Senate confirmation process — the courts have declined. That is embarrassing for the attorney, especially if the president has nominated her and/or wants to keep her as a top prosecutor. It makes sense, then, that the administration might avoid asking the court to extend the appointment — especially in the case of someone like Holyoak, who is surely going to be confirmed soon and whom the DOJ had other statutory ways to keep in place in the interim.

I would also note, again, that the statute authorizes the court to appoint a district U.S. attorney of its choosing. Apparently, though, the judges in Utah have not tried to do that. If judges were of a mind to usurp power, that kind of restraint would be surprising.

Plus, there’s history here: a number of times, district courts have appointed a U.S. attorney only to have that appointee instantly fired by President Trump. This presents a constitutional conflict: Ostensibly, the appointments clause allows Congress to endow the courts with the power to appoint an inferior officer; but because U.S. attorneys wield executive power, judicial appointments collide with the principle that the president must be able to remove executive officers at will. If judges have decided to avoid that problem by neither approving nor appointing U.S. attorneys, that would not be unreasonable.

As I understand it, there are five active judges in the District of Utah, three Democratic-appointed and two Republican-appointed. I suppose it’s possible that the Democratic majority refused to vote to continue Holyoak as an interim. But I’m skeptical; judges generally want their district to have a legitimately appointed U.S. attorney in place. Utah is a red state, and even judges appointed by Presidents Obama and Biden would not have been confirmed unless they were acceptable to the state’s Republican senators. Maybe the judges were asked to extend Holyoak and the Democratic majority declined in protest against President Trump’s undermining of the confirmation process and his administration’s strident condemnations of judges. But if so, I’d be surprised.

In any event, Holyoak is not the Senate-confirmed U.S. attorney right now for two reasons: President Trump unreasonably procrastinated in nominating her, and by the time he got around to it, the Senate’s action calendar was blocked by legislation that the president has browbeat congressional Republicans into prioritizing. None of that is the judges’ fault.