'A transparent trick': Yet another US attorney appointed by Trump admin faces disqualification challenge as defendant claims prosecutor 'unlawfully' signed indictment

In late November of 2025, a federal judge disqualified prosecutor Lindsey Halligan from a leadership role with the so-called Rocket Docket, ruling that she was a "private citizen" who was never validly appointed to serve as interim U.S. attorney for the EDVA.

Now, in a threatened repeat of disqualification trouble the Trump administration has faced on numerous occasions before — and one time since — Halligan's departure, yet another temporary prosecutor installed by the executive branch is facing the same fate.

In a 13-page consolidated motion, a criminal defendant accused of being a felon in possession of a firearm is trying his luck at disqualifying onetime "Acting U.S. Attorney" Robert N. Tracci, who was appointed to serve in that role for the Western District of Virginia in August 2025 by then-Attorney General Pam Bondi.

This March, in a familiar shuffle of titles but not responsibilities, Tracci was re-designated as "First Assistant U.S. Attorney."

Such nomenclature hopscotch by the U.S. Department of Justice has been standard the past two years as President Donald Trump has often failed to get appointments through the GOP-controlled Senate.

In what has become a recurring controversy, the White House has given up on Senate confirmation for such positions, opting for a series of lesser appointments provided by various statutes.

But critics of the second Trump administration have nearly as often taken issue with these putatively temporary appointments.

In the present case, the defendant, Michael Antonio David Jr., derides the Tracci appointment as "a transparent trick to end run the Appointments Clause and the Federal Vacancies Reform Act."

To hear David tell it, "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 to disqualify goes on to accuse the DOJ of only "purportedly keeping" in line with one of the operative statutes relied on by the Trump administration to move appointees around.

"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 reads. "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 motion describes the Tracci appointment as part and parcel of "Executive branch machinations" and a "circumvention" of the "presidential appointment and Senate confirmation process."

The filing cites several recent successful disqualification efforts in various circuits, including 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 continues. "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 efforts are pointed — and aimed directly at his own criminal indictment, the motion to disqualify makes clear; it is consolidated with a motion to dismiss the indictment against him.

"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 goes on. "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 elaborates:

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."

Here, some precedent is on David's side.

In jurisdictions in which those "first assistant" U.S. attorneys have taken the reins of the federal law enforcement apparatus, fierce court challenges have not just resulted in disqualifications. In some cases where prosecutors have been tossed by courts, entire cases have also been thrown out, leaving defense attorneys to question all the cases in which disqualified appointees are listed on court documents — to varying degrees of success.

"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 explains.

The defendant hopes to join those ranks by becoming the first mover on a successful disqualification effort of his own, asking the court to dismiss his indictment either with or without prejudice.