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.”

But the post from the former criminal defense lawyer for Donald Trump risks misleading the public into thinking that judges have no role in the process, when the law says otherwise.

Kinsella had just been appointed by federal judges in the Albany-based Northern District of New York to fill a vacancy left by John Sarcone, after a judge found that Sarcone was unlawfully serving as acting U.S. attorney — making him one of several Trump loyalists whose temporary tenures have been deemed illegal in court.

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?

He doesn’t elaborate, but that article contains, among other things, the rules surrounding the president’s appointment of federal officers.

Is Blanche arguing that the law giving judges temporary appointment power is unconstitutional? Such an argument would be in keeping with the claims of vast executive power that the administration has been making.

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.

Of course, the administration is free to argue that the law is unconstitutional, though it’s unclear if there will be a case squarely presenting that issue, whether in Kinsella’s case (if it’s litigated) or in the case of any of the other Trump picks who were found to be illegally serving.

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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