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As Indiana’s nominees for U.S. attorney await full Senate confirmation, the acting federal prosecutors leading the state’s two districts have avoided the legal challenges now complicating similar appointments elsewhere.
In Indiana’s Southern District, court spokesperson Doria Lynch said judges voted Nov. 7 to appoint Tom Wheeler under 28 U.S.C. § 546(d). Chief Judge James Sweeney II signed the order, which extends Wheeler’s service until the Senate acts on his nomination. Wheeler has served as interim U.S. attorney since June and said there are no legal issues regarding his initial appointment or his reappointment by the district’s judges.
That stands in contrast to the Eastern District of Virginia, where interim U.S. Attorney Lindsey Halligan’s appointment was ruled unlawful this week. A federal judge agreed with lawyers for former FBI Director James Comey and New York Attorney Letitia James, who argued Halligan could not replace another interim U.S. attorney who had already exceeded the statute’s 120-day limit. They contend that under federal law, district judges—not the attorney general—control subsequent temporary appointments, and that indictments secured during Halligan’s tenure must be dismissed. The Justice Department plans to appeal.
In the Northern District of Indiana, nominee Adam Mildred continues to work as a deputy prosecutor in Allen County while awaiting Senate confirmation. At the time Mildred was nominated in June, President Donald Trump designated M. Scott Proctor as acting U.S. attorney for the district.
Proctor emphasized that his role is governed not by the 120-day interim provision but by the Federal Vacancies Reform Act. That statute allows acting U.S. attorneys appointed by the president to serve 210 days after a vacancy—or 300 days during a presidential transition—and bars nominees from serving in an acting capacity unless they previously served as first assistant for at least 90 days in the prior year. The law permits the 210-day clock to restart if the Senate rejects a nomination, potentially extending an acting tenure well beyond a year.
Both Wheeler and Mildred advanced out of the Senate Judiciary Committee this fall on 12-10 votes, with Wheeler moving forward Oct. 9 and Mildred on Oct. 16. Wheeler said he is hopeful the Senate will take up his confirmation before year’s end and noted his pride in staff members who worked without pay during the 43-day federal shutdown.
Wheeler and Mildred were nominated by President Trump in June to lead the Southern and Northern Districts, respectively.
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