The Zombie U.S. Attorney Problem

While the Trump administration has repeatedly lost in court for invalidly installing interim U.S. attorneys, it has not yet backed down and relinquished the appointment power to federal judges.

A quick backgrounder on the law: Recent court decisions have reaffirmed that until the Senate confirms a U.S. attorney, the attorney general can only appoint an interim U.S. attorney for a term of 120 days. After that initial term expires, the interim U.S. attorney must be appointed by the federal judges in the district, under one statutory scheme.

In two of the high-profile cases where Bondi tried to sidestep the judges and lost, she continues to try to come up with workarounds to control the appointments herself, rather than ceding the power to the district judges.

In New Jersey — even after the Third Circuit Court of Appeals affirmed in the Giraud case that Alina Habba was not validly appointed as U.S. attorney and she resigned this week — Bondi took the unusual step of appointing a troika of attorneys on Monday to run the U.S. attorney’s office.

In a Dec. 8 memo approved by the Office of Legal Counsel, Henry C. Whitaker, who serves as counselor to the attorney general, wrote that the appointment of three lawyers who hold titles as special attorney, special counsel, and executive assistant U.S. attorney would be in compliance with the Constitution’s Appointment Clause: “This proposed order would divide the responsibilities of the United States Attorney among three officials so that the district may have continuity of leadership while the Department considers next steps in the Giraud litigation.”

On one level, you can understand why the administration would not want to cede appointment power to judges before it has decided whether to appeal the Third Circuit’s decision on Habba. Once it gives up that power and an interim U.S. attorney is appointed by the judges, the administration can’t get it back. But when you step back a bit, the pattern of refusing to yield to the statutory scheme that gives federal judges a role in naming interims after 120 days becomes more clear.

In the Eastern District of Virginia, Lindsey Halligan’s name continues to appear on government legal filings as interim U.S. attorney despite a court ruling that she was invalidly appointed. Federal judges in the district have called her out in recent days, and one judge went as far as saying Halligan should resign like Habba did. “That’s the proper position, in my view,” U.S. District Judge Leonie M. Brinkema said during a hearing Tuesday.

Another federal judge outside Halligan’s district drew attention to Halligan’s zombie status in an order yesterday. In a case related to the Trump administration’s dismissed prosecution of former FBI Director James Comey, U.S. District Judge Colleen Kollar-Kotelly of D.C. noted that Halligan’s improperly filed notice of appearance didn’t include her name but that of Deputy Attorney General Todd Blanche:

Kollar-Kotelly also expressed concern about the implications of the misfiled notices of appearance, noting they function “[t]o ensure that counsel who are accountable for the Government’s representations and legal positions in this matter are accurately identified in the official record of this case.” She gave the DOJ attorneys until this morning to file properly their notices of appearance in the case. In response, Halligan filed a new entry of appearance.

Bondi is using similar-in-spirit workarounds in two other districts, where the circumstances are different and probably legal under a different statutory scheme that allows first assistant U.S. attorneys to fill vacancies for 210 days (plus extensions under certain conditions). In Nevada, Bondi made Sigal Chattah the first assistant U.S. attorney and a special attorney after she was disqualified. In the Central District of California, Bondi made Bill Essayli the first assistant U.S. attorney after he too overstayed his term as interim.

So far, there’s no sign the judges in New Jersey or the Eastern District of Virginia are moving to confront Bondi’s defiance directly.

BREAKING: Judge Orders Abrego Garcia Released From ICE Custody

U.S. District Judge Paula Xinis of Maryland granted Kilmar Abrego Garcia’s petition for a writ of habeas corpus and ordered his immediate release from ICE custody.

All Part of His SCOTUS Audition?

An ethics complaint has been filed against appeals court Judge Emil Bove for his appearance at President Trump’s Tuesday rally in Pennsylvania.

The Corruption: Pardon Edition

• WSJ: A Visual Breakdown of Trump’s Pardon Spree
• Bloomberg: Almost 400 people pardoned or granted clemency by President Donald Trump in connection with the Jan. 6 attack are now seeking millions of dollars in damages from the federal government. They are represented by Attorney Mark McCloskey of St. Louis, whom you might remember as this guy:

Quote of the Day

U.S. District Judge Charles Breyer, in a ruling that blocked President Trump’s federalization of the California National Guard as unlawful:

The Founders designed our government to be a system of checks and balances. Defendants, however, make clear that the only check they want is a blank one. Six months after they first federalized the California National Guard, Defendants still retain control of approximately 300 Guardsmen, despite no evidence that execution of federal law is impeded in any way—let alone significantly. What’s more, Defendants have sent California Guardsmen into other states, effectively creating a national police force made up of state troops. In response to Plaintiffs’ motion to enjoin this conduct, Defendants take the position that, after a valid initial federalization, all subsequent re-federalizations are completely, and forever, unreviewable by the courts. Defendants’ position is contrary to law.

Venezuela Watch

President Trump trumpeted the U.S. seizure of a sanctioned oil tanker off the coast of Venezuela. While the move is provocative in the context of Trump’s saber-rattling toward the Maduro regime, it doesn’t appear to be directly connected to the anti-drug-trafficking pretext the Trump administration has used for its aggressive recent actions in the region. The tanker is reportedly part of a global shadow fleet that transports sanctioned oil.

This Is What Our Friends Are Saying

The Danish Defense Intelligence Service released a new report that warns the United States can no longer be counted on not to use military force against its own allies.

“The United States uses economic power, including threats of high tariffs, to enforce its will, and no longer rules out the use of military force, even against allies,” the report said.

Hot tips? Juicy scuttlebutt? Keen insights? Let me know. For sensitive information, use the encrypted methods here.

A Timeline With Glaring Holes

I’ve been surprised that the uproar over the killing of the two survivors of the Sept. 2 attack has not yielded a renewed look at a later attack that also left a survivor — under especially dire circumstances.

The official accounts of the Oct. 27 strike were muddled from the beginning, with conflicting initial reports of whether the survivor had been rescued. More than six weeks later, key questions remain unanswered:

Oct. 27: U.S. conducts three strikes against four different vessels, killing 14 people and leaving a sole survivor, Defense Secretary Pete Hegseth announced in a social media post the next day:

Regarding the survivor, USSOUTHCOM immediately initiated Search and Rescue (SAR) standard protocols; Mexican SAR authorities accepted the case and assumed responsibility for coordinating the rescue.

The U.S. Coast Guard would later say that the strikes occurred on the afternoon of Oct. 27.

Oct. 28: Mexican President Claudia Sheinbaum said that her government “was informed about the Monday strike and about the potential survivor” on Tuesday morning, CNN reported.

The Mexican Navy would later say that its forces officially began a search-and-rescue operation for the “alleged castaway” at 6:30 a.m. on Oct 28, in the area U.S. officials reported a survivor.

“In a statement on X, Mexico’s Navy said it received a request from the U.S. Coast Guard and then carried out a rescue operation about 400 miles southwest of Acapulco, adding that an aircraft and a vessel were being used to carry it out,” Reuters reported.

The reason for the delay between the strikes on the afternoon of Oct. 27 and the launch of the Mexican search-and-rescue operation has not been publicly explained.

Notably, the NYT reported that the survivor had been rescued: “A U.S. military official, discussing operations on the condition of anonymity, said the lone survivor was picked up in waters near the coasts of Mexico and Guatemala.”

However, President Sheinbaum’s public comments cast doubt on whether there was a survivor, CNN reported:

Sheinbaum said she instructed the foreign minister, Juan Ramón de la Fuente, to meet with the US ambassador to Mexico, Ron Johnson, “and we will give them the information with the Navy secretariat about this survivor, if it is the case that there was indeed a survivor.”

The U.S. Coast Guard would later say the Mexican Navy informed it on the afternoon of Oct. 28 that is had found no survivors.

Oct. 29: “Pentagon officials convened another session about boat strike survivors, a video conference involving dozens of American diplomats from across the Western Hemisphere,” the NYT would later report. No word of whether the fate of the lone survivor came up in the conference call two days after the attack in question.

Oct. 31: Mexico publicly announces that it has found no survivors from the Oct. 27 attacks.

After citing an anonymous U.S. military official earlier in the week as saying the survivor was rescued, the NYT reports that the Pentagon is offering a different account:

The Pentagon said that after the strikes on Monday, U.S. military officials “observed one narcoterrorist in the water clinging to some wreckage.” U.S. officials then alerted a Mexican military boat nearby of the survivor, the Pentagon said in a statement on Friday, and Mexican officials assumed responsibility for the rescue.

The Pentagon statement also mentioned that it alerted not just the Mexican military boat but a nearby Mexican military aircraft, according to the NYT report:

The Pentagon statement on Friday said the U.S. forces acted “in accordance with international protocols for a distressed person in the water” and “relayed the precise location and status of the person in the water” to a Mexican military aircraft that was operating nearby.

Nov. 1: Mexican Navy planned to end its active search for survivors of the Oct. 27 strikes.

“The survivor was spotted swimming in the ocean … was never located and is believed to have drowned,” ABC News would grimly describe it a few weeks later.

As you can see, the inconsistencies in the various reports are glaring: Was there a survivor? Was the survivor rescued? Why the delay between the purported sighting of the survivor by the U.S. military and its hand off of the responsibility for the search-and-rescue operation to Mexico?

In mid-October, the Pentagon had briefly detained two survivors of a different strike before quickly repatriating them to Ecuador and Colombia, respectively. The Pentagon’s obvious squeamishness about taking survivors into custody raises a host of additional questions about the fate of the lone survivor.

Pentagon Considered Sending Boat Strike Survivors to CECOT

The Pentagon considered sending the two survivors of the Sept. 2 U.S. strike on an alleged drug-smuggling boat to El Salvador’s CECOT prison, the NYT is now reporting: “The State Department lawyers were stunned, one official said, and rejected the idea.”

Nothing to See Here!

Less than two weeks after launching a bipartisan investigation into the Trump administration’s lawless strikes on the high seas, the GOP chairman of the House Armed Services Committee is shutting down the probe.

More Saber-Rattling

A pair of U.S. Navy F/A-18 fighter jets flew over the Gulf of Venezuela on Tuesday, with conflicting reports on whether they entered Venezuelan airspace.

Must Read

TPM’s Hunter Walker in the first installment of his Undocumented Underground series: Inside the Secret Network Offering Sanctuary to Immigrants Amid Trump’s ICE Onslaught

The White Nationalist Presidency

Nearly every day of the Trump II presidency provides another searing example of the white nationalism that fuels MAGA. The most recent is the Justice Department eliminating its “disparate impact” regulations: “The Justice Department on Tuesday moved to end long-standing civil rights policies that prohibit local governments and organizations that receive federal funding from maintaining policies that disproportionately harm people of color,” Politico reports.

Thread of the Day

1/ A few thoughts about @williambaude.bsky.social’s comment in yesterday’s NYT chat that, “It’s amazing how many of our problems today could be solved by a Congress that was willing and able to legislate in response to national problems.” www.nytimes.com/2025/12/09/o…

— Josh Chafetz (@joshchafetz.bsky.social) 2025-12-10T09:44:10.164Z

Only the Best People

• FEMA: Conspiracy theorist election denier Gregg Phillips will lead the Office of Response and Recovery, Marisa Kabas reports.
• USAID: Right-wing influencer Mike Benz, who rose to prominence last year by spreading fantastical claims about USAID, is now working at the agency, The Atlantic reports.

Spotted at Unhinged Trump Rally: Emil Bove

Appeals Court Judge Emil Bove was seen in the crowd at the wild Pennsylvania rally held last night by President Trump, where he said things like this:

Trump on 2028: "They say I'm not allowed to run. I don't know what the hell that's all about. He said, 'Four more years.' You see the new hat? We have four more years — 2028."

— Aaron Rupar (@atrupar.com) 2025-12-10T00:33:59.157Z

Trump: "Ilhan Omar, whatever the hell her name is. With her little turban. I love her. She comes in, does nothing but bitch … we ought to get her the hell out … she's here illegally."The crowd in Pennsylvania then starts chanting "send her back!"

— Aaron Rupar (@atrupar.com) 2025-12-10T00:43:34.210Z

Trump: "You can give up certain products. You could give up pencils. Because under the China policy, every child can get 37 pencils. They only need 1 or 2. They don't need that many. You always need steel. You don't need 37 dolls for your daughter. 2 or 3 is nice. So we're doing things right."

— Aaron Rupar (@atrupar.com) 2025-12-10T01:17:55.675Z

Hot tips? Juicy scuttlebutt? Keen insights? Let me know. For sensitive information, use the encrypted methods here.