Judge invalidates top federal prosecutor's appointment, but leaves him in charge under new job title

The Trump administration's effort to install a U.S. attorney for New Mexico without U.S. Senate confirmation has failed, but a federal judge allowed Ryan Ellison to be a top prosecutor under another title.

Ellison is among six U.S. Department of Justice appointees, two of whom have been controversial, who have lost their interim or acting U.S. attorney titles over the past year after federal courts invalidated their appointments as unlawful.

"The issues presented arise in a context unfamiliar to most citizens, lawyers and, judges," wrote Senior U.S. District Judge David Ogden Nuffer in a 53-page ruling released Wednesday. "The fundamental pillars of checks and balances among co-equal branches of the United States federal government are implicated."

In less than a year, Ellison has gone from an assistant U.S. attorney to interim U.S. attorney and then "acting" U.S. attorney. 

The Alamogordo native now holds the title of first assistant U.S. attorney after lawyers for about 20 criminal defendants challenged his acting U.S. attorney appointment as illegal and asked for his disqualification from and dismissal of their pending cases.

"Mr. Ellison is not, and was never, a validly acting United States Attorney for the District of New Mexico," Nuffer said in his ruling. "He has been invalidly claiming to serve in that capacity since his resignation as interim United States Attorney on August 13, 2025."

There is no U.S. attorney for New Mexico, but the judge ruled that Ellison will assume that responsibility for the most part as the second-in-charge.

New Mexico's U.S. Sens. Martin Heinrich and Ben Ray Luján, both Democrats, issued a statement Thursday saying, “New Mexicans deserve a chief federal prosecutor focused on keeping our communities safe. And that requires a fidelity to the law, which this administration is clearly uninterested in.”

Lawyers for the defendants pointed out that the Trump administration has attempted to use similar methods of installing acting U.S. attorneys in New Jersey, Nevada, the Los Angeles area, northern New York and in the Eastern District of Virginia.

Nuffer was asked to hear the Ellison appointment challenge in September after all New Mexico's federal judges recused themselves.

Typically, the president would send a nominee for U.S. attorney to be confirmed by the Senate, as happened with Ellison's predecessor Alexander M.M. Uballez, an appointee of President Biden in 2022.

After Trump took office and asked Uballez to resign, Ellison became an interim U.S. attorney April 17, a temporary post that had a 120-day term.

To stay in office without the traditional U.S. Senate confirmation, Ellison resigned that post Aug. 13, several days before that term expired. The next day, U.S. Attorney General Pam Bondi designated him the first assistant U.S. attorney with authority to serve as acting U.S. attorney.

Nuffer wrote that the method used by the Trump administration was "an apparent attempt to contravene the clear and plain limitations Congress implemented for the temporary filling" of the U.S. attorney's job. But Nuffer, an Obama appointee, noted that the "tension between the Executive and Congress regarding (such appointments) is not unique to this administration."

He also rejected the criminal defendants' request for dismissal of their charges filed when he held the acting post, as well as finding no need to disqualify him from supervising those cases.

"Since I was appointed last April, I’ve repeatedly used the phrase 'for however long I serve' because the duration of my time leading the United States Attorney’s Office has always been uncertain. Even though my title has changed, my mission remains the same," Ellison said in a press release on Thursday.

It wasn't clear whether Trump will ever nominate a U.S. attorney for New Mexico subject to Senate confirmation during the remainder of his term.

"As the top federal prosecutor in New Mexico, I will work tirelessly to enhance public safety for all New Mexicans," Ellison added. "I look forward to continuing to work with public servants of all political stripes for the betterment of our state — for however long I serve.” 

Nuffer noted that it was reasonable to infer that because of Ellison's length of service, which spanned multiple executive administrations, he is a career official with knowledge of the U.S. Attorney's Office.

"And there is no record evidence that he lacks the qualification or the ability to serve in the role of (First Assistant U.S. Attorney)," the judge wrote. "Defendants have also failed to identify sufficient legal authority demonstrating that the motive behind Mr. Ellison's designation somehow invalidates the designation."

In the five other cases, one of Trump's former private attorneys, Alina Habba, was found to be unlawfully appointed to the U.S. attorney's job in New Jersey. In eastern Virginia, a judge ruled that another of Trump's former personal lawyer, Lindsey Halligan, was unlawfully appointed as interim U.S. attorney and dismissed cases she had brought against New York Attorney General Letitia James and former FBI Director James Comey.

Mark Baker, a former assistant U.S. attorney who is a private attorney in Albuquerque,  said of Nuffer's ruling, "Like in other parts of the country, the Trump administration distorted the process for confirming the U.S. Attorney. That violates the Constitution. The only surprising thing about yesterday’s ruling is that Ryan 'Ry' Ellison and the administration made a federal court issue an order confirming that the Constitution still matters.

"Every other person to serve as U.S. Attorney has submitted to Senate confirmation before trying to serve as the top federal law enforcement officer in this state. It’s dangerous for the State, crime victims, defendants, and law enforcement to not have a legitimate, vetted, and confirmed U.S. Attorney," Baker added.

State Republican Party Chairwoman Amy Barela issued a statement, saying, “This decision affirms the validity of Mr. Ellison’s designation as First Assistant U.S. Attorney and his commitment to public safety that benefits all New Mexicans."

"Ryan Ellison has done exactly what he was put in his position to do — responsibly, respectfully, and in a nonpartisan manner by following the rule of law," Barela stated. "New Mexicans deserve effective leadership that focuses on securing our state first, not political theater aimed at undermining justice.”