Inset: Robert N. Tracci is shown in a profile photograph provided by the U.S. Department of Justice. Background: President Donald Trump speaks to reporters in the Oval Office at the White House on Tuesday, Feb. 11, 2025, in Washington, D.C. (Photo/Alex Brandon).
In late November 2025, a federal judge barred prosecutor Lindsey Halligan from continuing in a leadership position with the so-called Rocket Docket. The judge ruled that Halligan was a “private citizen” who had never been lawfully appointed as interim U.S. attorney for the Eastern District of Virginia.
Now, after the Trump administration has encountered similar disqualification challenges repeatedly — including once since Halligan’s removal — another temporary prosecutor appointed by the executive branch is facing a comparable legal fight.
In a 13-page consolidated motion, a criminal defendant charged with being a felon in possession of a firearm is seeking to disqualify Robert N. Tracci, the former “Acting U.S. Attorney” for the Western District of Virginia. Then-Attorney General Pam Bondi appointed Tracci to that position in August 2025.
In March, Tracci’s title changed, but his responsibilities apparently did not. He was re-designated as “First Assistant U.S. Attorney.”
The Justice Department has repeatedly used this kind of title change over the past two years, as President Donald Trump has struggled to secure Senate confirmation for nominees even with Republicans in control of the chamber.
As the controversy has continued, the White House has increasingly abandoned the traditional path of Senate confirmation for these posts, relying instead on a succession of temporary appointments authorized under different federal statutes.
Critics of the second Trump administration, however, have repeatedly challenged the legality of those interim arrangements.
In this case, defendant Michael Antonio David Jr. characterizes Tracci’s appointment as “a transparent trick to end run the Appointments Clause and the Federal Vacancies Reform Act.”
According to David’s filing, “the Attorney General in 2025 and 2026 undertook a series of cynical measures designed to avoid subjecting Mr. Tracci and others to senatorial scrutiny and confirmation.”
The motion also alleges that the Justice Department merely “purportedly” complied with one of the federal statutes the Trump administration invoked while shifting officials between positions.
“Some 210 days after Mr. Tracci supposedly became ‘Acting United States Attorney,’ the Attorney General on or about March 19, 2026, recognized him for the second time as First Assistant,” the motion states. “Mr. Tracci continues to hold the First Assistant title. He operates as de facto United States Attorney for the Western District of Virginia, despite never having been nominated by the President nor confirmed by the Senate.”
The filing portrays Tracci’s appointment as part of broader “Executive branch machinations” intended to circumvent the presidential appointment and Senate confirmation process.
David’s attorneys point to several recent disqualification victories in federal appeals courts, including cases involving Alina Habba in the 3rd Circuit, John Sarcone in the 2nd Circuit and Sigal Chattah in the 9th Circuit.
“The case at bar is much like the decisions from the Second, Third and Ninth Circuits,” the motion says. “Mr. Tracci has never been nominated by the President nor confirmed by the Senate. No bureaucratic titles or sleights of hand can overcome Mr. Tracci’s failure to undergo the [appointment and confirmation] Process.”
David’s challenge is directly tied to his own criminal case. The filing makes clear that the disqualification request has been combined with a motion seeking dismissal of his indictment.
“The Indictment appears to have been signed by two persons: (1) the Foreperson of the grand jury; and (2) Mr. Tracci, as ‘Acting United States Attorney,’” the motion states. “Particularly since Mr. Tracci unlawfully signed the Indictment as ‘Acting United States Attorney,’ the appropriate remedy here is dismissal or nullification of that charging instrument.”
The filing further argues:
Mr. Tracci has participated directly and indirectly in the Department of Justice’s prosecution of David since its inception. The face of the Indictment manifests his direct involvement. The Indictment bears his ultra vires signature as “Acting United States Attorney.”
David’s position also finds support in some recent court decisions.
In several jurisdictions, first assistant U.S. attorneys who assumed control of federal prosecutors’ offices have faced aggressive legal challenges. Courts have not only disqualified some of those officials; in certain cases, they have dismissed entire prosecutions. Those rulings have prompted defense lawyers to scrutinize cases in which disqualified appointees appeared on court filings, though the results of such efforts have varied.
“Defendants have challenged the Attorney General’s circumvention of the [appointment and confirmation] Process in motions to dismiss their indictments and disqualify the First Assistant from exercising authority reserved for officers who have withstood the [appointment and confirmation] Process,” the motion states.
David is asking to join those successful challenges. He wants the court to dismiss his indictment, either with prejudice or without prejudice, while arguing that Tracci had no lawful authority to sign it.
The post ‘A transparent trick’: Trump administration’s temporary U.S. attorney faces disqualification bid after defendant claims prosecutor ‘unlawfully’ signed indictment first appeared on Law & Crime.