The Western District of Virginia will apparently soon not have a U.S. attorney — neither acting, nor interim, and certainly not a permanent one.
Instead, it seems likely to have a first assistant, the top deputy, who cannot carry out certain duties without express permission from the Department of Justice.
The immediate news is that the seven judges of the Western District of Virginia posted a notice Friday that they had unanimously decided not to extend Robert Tracci’s tenure as acting U.S. attorney when his term expires in a few weeks.
The context of that announcement requires a recap of the past two years, which deals with President Donald Trump’s unusual approach to appointing the chief prosecutor for federal judicial districts, which has increasingly involved ways to avoid the constitutionally mandated Senate confirmation for U.S. attorneys.
Under the Constitution, presidents have the power to appoint U.S. attorneys, subject to confirmation by the U.S. Senate. Historically, senators have offered names to the White House, and the president has chosen from them, even if the senators and the president are from different parties.
After Trump took office in 2025, Virginia’s two Democratic senators, Mark Warner and Tim Kaine, recommended the names of two Republican attorneys for the Western District post: Todd Gilbert of Shenandoah County, the former speaker of the Virginia House of Delegates, and Robert Tracci, a former Albemarle County commonwealth’s attorney who at the time was serving in the state attorney general’s office.
On July 1, 2025, Trump announced that he would nominate Gilbert. Soon afterward, Trump named Gilbert as interim U.S. attorney, which allowed him to take office before Senate confirmation.
Gilbert lasted five weeks. He was forced out by the White House after he clashed with Trump administration officials over personnel matters. According to reporting at the time by The Roanoke Times, the White House pressured Gilbert to replace a certain attorney who had served under a previous U.S. attorney appointed by then-President Joe Biden. Gilbert balked at such interference, and the White House reportedly gave him a choice of resigning or being fired. Gilbert resigned.
The White House had installed Tracci, the runner-up for the U.S. attorney, as Gilbert’s first assistant, although U.S. attorneys traditionally have chosen their own first assistant. With Gilbert out, Tracci became acting U.S. attorney.
Now come the details: By law, someone can only serve as an acting U.S. attorney for 280 days. Tracci’s tenure will expire soon — the judges say that’s March 18, although some in Washington contend the expiration date is really April 1. Either way, Trump can’t name Tracci as an interim U.S. attorney because, by law, the president is allowed only one interim appointment and Trump used that up when he made Gilbert the interim U.S. attorney.
By law, the judges could name their own acting U.S. attorney when presidents are unable to fill the vacancy. However, when judges in other districts have done that, Trump promptly fired them. This happened most recently in the Eastern District of Virginia, which has been roiled by Trump’s failed attempt to install Lindsey Halligan, one of his former personal attorneys. By the time judges ruled that Halligan was serving unlawfully, Trump had already used up both his interim and acting appointment opportunities in that district. In response, the judges met and named James Hundley as acting U.S. attorney for the Eastern District. A few hours later, a Justice Department official posted that Hundley had just been fired: “EDVA judges do not pick our US Attorney. POTUS does. James Hundley, you’re fired!”
Despite that, the president — POTUS is the acronym for president of the United States — has not nominated a candidate to serve as U.S. attorney in the Eastern District. Or the Western District, either, for that matter. That’s an odd choice, since Tracci, the current acting U.S. Attorney in the Western District, has originally been one of those recommended by the state’s two senators, which would seem to signal an easy confirmation. However, Trump appears determined now not to nominate any U.S. attorneys recommended by Democratic senators — even those with long Republican credentials, which Tracci has.
The judges of the Western District — a mix of Democratic and Republican appointees — seemed disinclined to provoke a fight with Trump by naming an acting U.S. attorney, either by extending Tracci’s service or naming someone else. Instead, they posted this statement on the court’s website: “On Wednesday, March 11, 2026, the active and senior district judges of this court met and unanimously agreed not to exercise their authority to appoint a United States Attorney. The district judges prefer to await a nomination by the President, subject to the advice and consent of the Senate, for this Executive Branch position.”
The Hill, a news site covering Washington politics, reported that judges in the Eastern District of Wisconsin last week made the same decision.
So what happens when Tracci’s time runs out, whatever the date is? Most likely the Western District of Virginia will proceed the way the Central District of California has, where there’s been a similar situation. In that California case, the acting U.S. attorney reverted to his original role as first assistant U.S. attorney and continues to run the office, but with fewer powers. Tracci could do the same.
Under such an arrangement, the first assistant would have to seek approval from a deputy attorney general in Washington to perform certain duties that a U.S. attorney could by right — to seek immunity for witnesses, to apply for certain court orders, including tax returns. It also seems likely that a deputy attorney general would need to sign indictment papers, which are normally signed by a U.S. attorney.
In California, the Daily Journal in Los Angeles reported that the first assistant, unable to continue as acting U.S. attorney, says that “nothing is changing.”
What’s changing is not the day-to-day administration of the office but the political context in which U.S. attorneys are named. Last September, Politico reported that “Without Senate-vetted appointees, most of the country’s [94] U.S. attorney offices are being led by interim leaders — and some of them have displayed far more obedience to Trump, and his desire for retribution, than full-time U.S. attorneys have ever shown to presidents they served under. Historically, U.S. attorneys have tended to guard their offices’ authority to work relatively independently even from Justice Department headquarters and certainly from the White House.”
A list published on the Department of Justice website shows that only 30 of the 94 federal judicial districts currently have a presidentially nominated and Senate-confirmed U.S. attorney. None of those are in what might be considered Democratic states.
Nor are there signs that the White House is working to nominate U.S. attorneys. Critics say this creates a situation where Trump is essentially evading the constitutional requirement of Senate confirmation by installing first assistants and letting them function as U.S. attorneys, just with limited powers that put them more directly under the control of Washington.
In New Jersey, that’s provoked a long-running fight between the judges and the Trump administration over who the lawful top prosecutor is. This situation in the Western District seems unlikely to produce such confrontation, especially since Warner and Kaine had signaled their acceptance of Tracci when they offered him as a potential nominee. Still, this is not a normal situation.
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