Trump named Dan Bishop to a top prosecutor job in NC. Was it legal? | Opinion
Former U.S. Rep. Dan Bishop has been serving as one of North Carolina’s top federal prosecutors for months, as one of President Donald Trump’s many loyal yet controversial nominees for prosecutor jobs across the country.
Last year, Trump nominated Bishop to be the next U.S. attorney for North Carolina’s Middle District, and he has held the role on an interim basis since November while he awaits Senate confirmation. Very few of Trump’s U.S. attorney nominees have managed to be confirmed so far, and while Bishop’s nomination has had a committee hearing, it’s not clear when or if it will make it to the floor.
But his appointment may not be lawful. Trump has appointed dozens of loyalists with little experience, including Bishop, to prosecutor jobs across the country, and he has sought to keep them in their roles indefinitely, bypassing Senate approval. In many states, these interim U.S. attorneys have been removed or forced to resign due to legal challenges to their appointments., and it could have an impact on cases Bishop is involved in now.
Under federal law, the U.S. attorney general has the authority to appoint an interim U.S. Attorney to fill a vacancy for up to 120 days. After that period, if a permanent replacement still has not been confirmed by the Senate, the local district court can extend the interim appointment or choose someone else to temporarily fill the role. Bishop’s 120-day tenure ended earlier this month, and district judges extended his interim appointment until the vacancy is filled by a person confirmed by the Senate. That spares North Carolina from the legal drama playing out in other states where the Trump administration has sought to keep these interim U.S. attorneys in office longer than is legally allowed, against the will of judges.
But Bishop may be vulnerable to legal scrutiny about whether he was lawfully appointed in the first place. It’s less clear whether the law permits the attorney general to make back-to-back interim appointments. The Department of Justice has insisted it does have that authority, but federal courts have ruled that it does not. If that were the case, the president would be able to appoint temporary picks indefinitely, without ever needing the Senate’s approval, bypassing checks and balances completely.
Last year, U.S. District Judge Cameron McGowan Currie ruled that Lindsey Halligan, the interim U.S. attorney for the Eastern District of Virginia, never lawfully held the position because the Trump administration had already named someone to that role for 120 days. According to Currie, the 120-day clock began when the first interim U.S. attorney was appointed, and the attorney general’s appointment authority ended when that clock expired.
An article in National Review, a conservative magazine, criticized the attempt to appoint Halligan and said the administration was “courting chaos” by circumventing constitutional procedure and warned the precedents Trump is creating could be exploited by Democrats in the future.
Like Halligan, Bishop is the second consecutive person appointed to the position on an interim basis. Clifton T. Barrett was sworn in as interim U.S. attorney for the Middle District last July and continued in the role until Bishop replaced him in November. It’s unclear why the Trump administration chose to replace Barrett, a veteran prosecutor honored by the State Bar, with Bishop, who has no prosecutorial experience at all. Regardless, when Barrett’s appointment ended, the DOJ may not have had the authority to simply put another interim U.S. attorney in his place.
Carl Tobias, a law professor at the University of Richmond who is an expert on federal courts, said the arguments against U.S. attorneys in other states, particularly Virginia, could be relevant to North Carolina.
“I think that you could argue from the case that Currie decided that Bishop might have issues,” Tobias said. “Somebody would have to bring that litigation, but I think there’s a chance that that could happen.”
Now that Bishop has been appointed by the court, his position may be safe. But that doesn’t necessarily mean he is free from legal scrutiny, and that scrutiny could still have consequences. In other states, challenges over the authority of these interim U.S. attorneys have jeopardized criminal prosecutions. In Virginia, two high-profile criminal cases against Trump’s political opponents were thrown out by Currie because they had been solely prosecuted by Halligan, who had been appointed unlawfully. In New Jersey, at least one criminal trial was put on hold. In California and Nevada, federal public defenders have filed challenges on behalf of criminal defendants, trying to get their prosecutions dismissed. Those prosecutions were not dismissed, but it did create chaos and confusion over who could, and would, be prosecuting them.
Tobias said there’s a possibility something similar could happen in North Carolina.
“If Bishop is in that position, and he is responsible for prosecuting, then someone is able to go to court and say he wasn’t lawfully appointed, and try to get the judge to dismiss it,” Tobias said. “That’s what’s happened in some of the cases.”
Deputy Opinion Editor Paige Masten is covering politics and the 2026 elections for The Charlotte Observer and The News & Observer.
