The U.S. Department of Justice lists the top prosecutor position in Vermont as vacant, but the person who has been running that office for nearly a year said he is running the show.

The situation in Vermont is not unique, and has led to confusion and court cases around the country regarding who is legally carrying out federal law.

Michael Drescher — a longtime federal prosecutor in Vermont — has held the post of acting U.S. attorney for Vermont since President Donald Trump took office in January.

U.S. attorneys are responsible for prosecuting federal crimes and immigration law as well as representing the United States in civil matters.

Drescher’s title changed from “acting” last month but he wasn’t named to the U.S. attorney post on a permanent basis by Trump, which would have required Senate confirmation.

Instead, Drescher is listed as “First Assistant U.S. Attorney” in press releases issued by his office. In an email to VtDigger, Drescher stated, “I am still leading the office.”

He did not respond to a followup email seeking answers to why the change was made, or who made the decision.

The U.S. Department of Justice, headed by U.S. Attorney General Pamela Bondi, did not respond to a request for comment.

“There is a lot of confusion around the use of ‘interim,’ ‘acting’ and ‘first assistant’,” said Carl Tobias, a University of Richmond law professor who tracks U.S. attorney and judicial nominations.

“From my perspective, it’s avoiding what the Constitution requires, which is advice and consent of the Senate,” he said of the naming of U.S. attorneys. “In Trump 2.0 they’ve played fast and loose with that, and this is another example of it.”

Tobias said it’s difficult to say for certain why Trump doesn’t simply nominate a U.S. attorney for Vermont and go through the U.S. Senate confirmation process.

It’s possible, Tobias said, that the president doesn’t want to go through that process or fears that nominee’s confirmation wouldn’t be successful, or that he hasn’t found someone he wants to formally name to the post permanently.

Tobias said he also didn’t know the exact number of times during the Trump administration that an acting U.S. attorney for a federal district has later been named first assistant U.S. attorney to lead an office.

“I can’t tell you how many places this has happened, but it has happened,” he said, adding that many other districts are overseen by either acting or interim U.S. attorneys.

In only about 20 of the 94 federal districts, Tobias said, has a U.S. attorney gone through the U.S. Senate confirmation process during Trump’s current administration.

It’s difficult to determine from the U.S. Department of Justice website exactly how many interim, acting, first assistants and Senate-confirmed U.S. attorneys are leading federal districts.

In addition to Vermont, the only other federal district listed on the website as vacant is the Western District of Pennsylvania. That office, like Vermont’s, is also now headed by a person with the title of first assistant U.S. attorney, according to the website.

The main difference between an acting and interim U.S. attorney revolves around how long a person can stay in the post with that title, Tobias said, with the acting title allowing for a longer period of time.

According to federal law and rules, an interim U.S. attorney can generally serve for 120 days, while an acting U.S. attorney can generally serve for 210 days. There is no such limit for a person serving as first assistant U.S. attorney.

It’s unclear of the exact repercussions if a person stays longer in the post than they are allowed by their title, Tobias said, and whether any cases they oversee could be invalidated.

“It has to be raised and litigated,” Tobias said, adding that there have been cases challenging the authority of specific prosecutors around the country in other federal district courts that had reached varying rulings.

The person holding the first assistant title, he said, is usually the second in command in a U.S. attorney’s office. However, Tobias said, when there is no Senate-confirmed U.S. attorney or acting or interim U.S. attorney for an office, an argument could be made that the first assistant would then be in charge since technically the top post would be vacant.

“I think that’s the kind of fast and loose stuff,” he said.

Sen. Peter Welch, D-Vt., a member of the Senate Judiciary Committee, could not be reached for comment.

During the last Trump administration, Christina Nolan was nominated by the president to serve as the U.S. attorney for Vermont and was confirmed by the U.S. Senate in November 2017. She left the post in 2021 following President Joe Biden’s election.

Nikolas Kerest had served as the U.S. attorney for Vermont throughout most of the Biden administration but resigned in January after Trump was elected president.

This story was republished with permission from VtDigger, which offers its reporting at no cost to local news organizations through its Community News Sharing Project. To learn more, visit vtdigger.org/community-news-sharing-project.