Is Chicago's interim U.S. attorney here to stay? Judges could play an unusual role in picking top prosecutor
Andrew Boutros says he didn’t take the job as Chicago’s top federal prosecutor this spring as a short-term “field trip” — even if it’s on an interim basis.
The man appointed by Attorney General Pam Bondi to serve as interim U.S. attorney says he wants to “do the most and the best” he can in the role, whether it’s for months or years to come.
Traditionally, it’d be up to President Donald Trump and the U.S. Senate to decide whether Boutros is here to stay. But, with each passing day, another group seems more likely to play an unusual role in deciding Boutros’ fate: Chicago’s federal judges.
That’s because Bondi’s appointment gives Boutros only four months to serve as U.S. attorney. Nearly half of that time already has passed. If it expires, the law lets the U.S. District Court “appoint a United States attorney to serve until the vacancy is filled.”
The court doesn’t have to choose Boutros. But whoever it picks could have the power to serve until the Senate confirms another presidentially nominated U.S. attorney, according to Lauren Mattioli, an assistant professor of political science at Boston University.
It’s unclear whether that person could be fired otherwise, even by the president. Mattioli says no. Other experts aren’t sure.
“The only thing that can stop a bench appointment is someone getting through the Senate,” Mattioli says.
The Senate hasn’t confirmed a Chicago U.S. attorney since 2017. The last person nominated for the job, April Perry, was blocked by Vice President JD Vance when he was a senator, protesting Trump’s now-dismissed indictments.
Trump could still offer a candidate for Senate confirmation — no one has ruled that out. But to do so successfully, the Republican president would need to find someone who would pass muster with Illinois’ two Democratic senators, Dick Durbin and Tammy Duckworth.
Senate tradition gives home-state senators the ability to block U.S. attorney nominees. Partisanship reigns in the nation’s capital. And Durbin, ranking member of the Judiciary Committee, has cited Vance while threatening holds on U.S. attorney nominees.
Boutros wasn’t among the names given to the White House by Republican U.S. Rep. Darin LaHood, the congressman who led the formal search this year for Chicago’s U.S. attorney. That means Boutros’ tenure is already off to an unusual start.
In Massachusetts — another state with two Democratic senators — the federal court has appointed Leah Foley as U.S. attorney there. The court appointment took effect May 20, exactly four months after Foley’s appointment by Trump’s acting attorney general.
Trump risked losing control when he let the Massachusetts court make that pick. That’s partly why court-appointed U.S. attorneys are so rare, according to Mattioli.
But she says a “savvy president” might see the benefits, “especially in a district where he can’t expect to get his ideal candidate through the vetting of the home-state senators.”
A crucial office
The Justice Department has been a source of nonstop controversy since Trump began his second term. Critics say he’s weaponized a traditionally independent branch of government. Trump, in turn, has said his predecessors turned it into the “Department of Injustice.”
Though most of the controversy has swirled elsewhere, Chicago hasn’t been spared. Earlier this month, Assistant Attorney General Harmeet Dhillon announced a civil rights investigation into the role of race in hiring at City Hall under Mayor Brandon Johnson.
The Justice Department also has sued Johnson, Gov. JB Pritzker and other local officials, saying Democratic-led local governments improperly interfered with federal immigration enforcement.
Trump undid one of the most high-profile prosecutions in the history of Chicago’s federal court when he delivered a full and unconditional pardon to former Gov. Rod Blagojevich in February.
He made a similar move Wednesday when he commuted the sentence of Gangster Disciples co-founder Larry Hoover.
That all appears driven by officials in Washington, D.C. But it doesn’t change the fact that the city’s top federal prosecutor is one of the most crucial posts in the state. The U.S. attorney in Chicago leads an office long known for taking on corrupt politicians, street gangs, terrorism and financial crimes. The office employed nearly 130 criminal prosecutors a decade ago but is down to about 100.
Its aggressive, decade-long probe of corruption recently ended the careers of former Illinois House Speaker Michael J. Madigan and former Ald. Edward M. Burke. The longtime powerhouse politicians are now convicted felons. Burke is in prison.
A new agenda
Boutros was a prosecutor in the U.S. attorney’s office before, between 2008 and 2015, spending time in its Financial Crimes and Special Prosecutions Section. He went on to become co-chair of government investigations and white-collar practice for Shook, Hardy & Bacon LLP, the law firm he left to become U.S. attorney on an interim basis.
He returned to an office already in transition.
The U.S. attorney’s office has been without a Senate-confirmed leader for more than two years. It suffered another high-profile departure in March, when Amarjeet Bhachu, a lead prosecutor in the investigation that took down Madigan and Burke, decided to leave. And LaHood shined a spotlight on the office’s low indictment rate in February.
Since Boutros took office April 7, there have been few obvious shakeups or policy shifts, though, on April 25, it reversed course and decided not to seek a $3.1 million forfeiture judgment against Madigan, who faces sentencing June 13.
Speaking to reporters for the first time last month, Boutros said “there is a tremendous focus on violence” as well as on drug cartels, human-trafficking and child exploitation. He said there also are concerns about illegal immigration and the way it “impacts those other areas.”
Government corruption, he insisted, is a “mainstay of this office.”
But Boutros acknowledged that “we’re supposed to focus on the areas of priority as have been announced by our president."
“Part of our democracy is that, when someone wins the presidency, they get to set the agenda about what should be the areas of focus,” he said.
Mattioli, the assistant professor from Boston University, has studied U.S. attorney appointments extensively, including in a paper published earlier this year with Jennifer Selin, associate professor at Sandra Day O’Connor College of Law at Arizona State University.
They found that the use of “non-traditional” appointments like Boutros’ are “not unique to the Trump administration.”
But as it turns out, Mattioli said, those “are the folks who are going to file more cases in keeping with the president’s policy agenda.”
Power play
The law says a court-appointed U.S. attorney serves “until the vacancy is filled.” Mattioli says that means the president is powerless to remove one without successfully ushering a nominee through the Senate.
She and others also pointed to the controversy in 2020 over Geoffrey Berman, the former U.S. attorney for the Southern District of New York who was pressured to leave office during Trump’s first term. Berman was appointed by then-Attorney General Jeff Sessions in January 2018, using the same law Bondi used to appoint Boutros. The district court followed up and appointed Berman to the role in April 2018.
Two years later, then-Attorney General William Barr announced that Berman would be “stepping down.” Berman pushed back the same day, declaring, “I have not resigned.”
“I will step down when a presidentially appointed nominee is confirmed by the Senate,” he said.
The standoff lasted a day. Barr soon announced that Berman had been fired by Trump, and Berman eventually left office.
But he did so with the understanding that a deputy U.S. attorney would be taking his place — and not the person Barr had planned to install.
‘Supposed to be temporary’
Mattioli says a court appointment is “the least observable” way for a U.S. attorney to be named.
The internal logistics are unclear.
In Massachusetts, an order says Foley was appointed “by vote of the United States District Court.” In the Eastern District of Virginia, a May 9 order appointing Erik Siebert as U.S. attorney cites the “unanimous decision” of the court’s judges.
Unlike Boutros and Foley, Siebert has been formally nominated for the job in the Senate, records show.
The Chicago Sun-Times reached out to U.S. District Chief Judge Virginia Kendall and Clerk of Court Thomas Bruton this month about the process behind a U.S. attorney appointment here.
Bruton told the newspaper that, “the district court judges will consider the matter during an executive session prior to August 5, 2025.”
Kendall, nominated to the bench by Republican President George W. Bush in 2005, once publicly praised Boutros. When he left the U.S. attorney’s office in 2015, she told the Sun-Times his “keen legal mind is second only to his passion for developing the area of law pertaining to corporate social responsibility.”
But when the Sun-Times asked Kendall this month about Boutros and the possibility of a court appointment, Bruton, not Kendall, responded, citing the code of conduct for federal judges.
He said it “precludes a judge from making a public comment on the merits of a matter before any court.”
Chicago’s federal judges mostly were nominated by Democratic presidents. They generally have been longtime members of the Chicago legal community, which might make them a good fit to pick a U.S. attorney.
But it’s not a power granted to the judges under the traditional appointment process, Mattioli says.
“They’re not supposed to be doing this,” she says. “So whether they’re good at it or not is kind of irrelevant.”
Appointments like Boutros’ have become more common over the years, according to Mattioli’s research. The fact that they languish, she says, “means that the goals that the traditional process was designed to fulfill can’t be met.”
And U.S. attorneys who are not confirmed through the Senate, she says, are “all supposed to be temporary.”
Contributing: David Struett