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Deadline Legal Blog-How Todd Blanche's 'You are fired' post against a New York prosecutor ignores the law
The former Trump defense lawyer and current high-ranking DOJ official made a legal statement that risks misleading the public.
How Todd Blanche’s ‘You are fired’ post against a New York prosecutor ignores the law www.ms.now/deadline-whi... The former Trump defense lawyer and current high-ranking DOJ official made a legal statement that risks misleading the public.
— timethiefmedia - Canadian foreverðŸconservative never (@timethiefmedia.bsky.social) 2026-02-12T20:41:19.058Z
https://www.ms.now/deadline-white-house/deadline-legal-blog/todd-blanche-fired-new-york-prosecutor-donald-kinsella-law-constitution
The Trump Justice Department’s second-ranking official, Todd Blanche, wrote Wednesday night on social media: “Judges don’t pick U.S. Attorneys, @POTUS does. See Article II of our Constitution. You are fired, Donald Kinsella.”
....It’s true that judges aren’t generally involved in the appointment of U.S. attorneys. The typical process is that those top prosecutors are nominated by the president and confirmed by the Senate.
But the Trump administration has tried to avoid that normal process, instead seeking to string together temporary stints of loyalists eager to carry out the president’s plans without Senate approval. That has led judges to get involved by way of a federal law that says that when an appointment expires, “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.”
So, contrary to the implication of Blanche’s post, judges sometimes do have a role to play — not because they’re randomly intervening, but because the law says so.
Now, what’s this about Blanche’s reference to Article II of the Constitution?....
But looking at the text of that constitutional provision, it says that Congress “may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Applying that text to the federal law giving judges appointment power when there are U.S. attorney vacancies, Congress would seem to have given that power to the courts in this situation.....
Also, judges in other districts have used that power to appoint prosecutors who were initially backed by Trump, including Jay Clayton in the Southern District of New York, whom Attorney General Pam Bondi tasked with investigating Democrats’ ties to Jeffrey Epstein. Therefore, the administration might not want to upend that judicial authority completely, even if it can.
Zooming out, all this appointment drama stems from the administration’s inability or unwillingness to pick lawyers who can get through the confirmation process. As with much else these days, a more measured approach to start with would make drawn-out litigation unnecessary. But that’s not how this administration rolls, as it prioritizes attempting to use the DOJ as another one of the president’s personal tools.
Link to tweet
....It’s true that judges aren’t generally involved in the appointment of U.S. attorneys. The typical process is that those top prosecutors are nominated by the president and confirmed by the Senate.
But the Trump administration has tried to avoid that normal process, instead seeking to string together temporary stints of loyalists eager to carry out the president’s plans without Senate approval. That has led judges to get involved by way of a federal law that says that when an appointment expires, “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.”
So, contrary to the implication of Blanche’s post, judges sometimes do have a role to play — not because they’re randomly intervening, but because the law says so.
Now, what’s this about Blanche’s reference to Article II of the Constitution?....
But looking at the text of that constitutional provision, it says that Congress “may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Applying that text to the federal law giving judges appointment power when there are U.S. attorney vacancies, Congress would seem to have given that power to the courts in this situation.....
Also, judges in other districts have used that power to appoint prosecutors who were initially backed by Trump, including Jay Clayton in the Southern District of New York, whom Attorney General Pam Bondi tasked with investigating Democrats’ ties to Jeffrey Epstein. Therefore, the administration might not want to upend that judicial authority completely, even if it can.
Zooming out, all this appointment drama stems from the administration’s inability or unwillingness to pick lawyers who can get through the confirmation process. As with much else these days, a more measured approach to start with would make drawn-out litigation unnecessary. But that’s not how this administration rolls, as it prioritizes attempting to use the DOJ as another one of the president’s personal tools.
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