Pirro's Powell probe faces a difficult road to appeal, former prosecutors say

Federal prosecutors in Washington are facing a decision that will help determine whether Federal Reserve Chair Jerome Powell is swiftly replaced or lingers on while politicians fight over his replacement.

If they do move ahead with a planned appeal against a recent adverse ruling, as U.S. Attorney for the District of Columbia Jeanine Pirro insists they will, they risk having the investigation bogged down in complex, unsettled law, former federal prosecutors with experience in appellate law say. 

"Regardless of the procedural vehicle they choose, the substantive road ahead of them is brutally steep," said Sean P. Murphy, a former assistant U.S. attorney who has argued before the judge who ruled against Pirro's probe of Powell and has briefed the D.C. Circuit Court of Appeals. 

The Trump administration's plans to quickly confirm former Fed official Kevin Warsh as Powell's replacement are looking increasingly likely to be a casualty of that legal battle.

Powell in January said the Fed had received subpoenas from Pirro's office, which he called a pretext to punish him for declining to meet President Donald Trump's demands to lower interest rates. Later legal proceedings revealed that the subpoenas were related to the cost overruns on Fed building renovations and his testimony about them, matters that Trump has said involve "criminality," without citing specific evidence. 

The Fed's attorneys asked Chief Judge James Boasberg of the D.C. District Court to quash the subpoenas, which he did, saying the prosecutors had not showed meaningful evidence of any malfeasance by Powell or the Fed. On April 3, Boasberg denied the prosecutors' request to reconsider the decision, leaving the investigation in limbo. 

Meanwhile, Sen. Thom Tillis, a North Carolina Republican set to retire in early 2027, has said he will block Warsh from advancing until the investigation into Powell is closed. Powell's term as chair expires May 15, but he expects the Fed's board to allow him to stay on as interim chair until a nominee is confirmed. Powell can also stay in his separate position as a voting member of the board through January 2028. 

"I have no intention of leaving the board until the investigation is well and truly over, with transparency and finality," Powell told reporters on March 18.  

Tillis and Senate Republicans are otherwise supportive of Warsh. So if Pirro's investigation ends, he may be quickly confirmed and could move to cut rates. If not, Powell could stay indefinitely. 

These two linked issues will come to a head next week. The Senate Banking Committee is set to hold a confirmation hearing for Warsh on April 16. The Trump administration is in effect forcing Tillis to prove his commitment to his principles. Tillis' spokesman on Wednesday said his plans hadn't changed.

Pirro has yet to file an appeal in the matter, and it isn't clear when she will do so. 

Appealing may not be a simple matter, said Daniel Richman, a Columbia University law professor. He was chief appellate attorney in the office of the U.S. attorney for the Southern District of New York.

"The general idea is courts of appeals don't like pretrial litigation to come before them, and they're really looking for some very clear decision having been made of real consequence," Richman said. 

Pirros' team said in court recently that it was still at the fact-finding stage. 

"We do not know at this time" if there was any improper conduct by Powell, a prosecutor told Boasberg at a March 3 hearing, according to the transcript. The prosecutors declined an offer by Boasberg to lay out their suspicions "ex parte," or without the presence of the Fed's legal team. 

"The Government's fundamental problem is that it has presented no evidence whatsoever of fraud," Boasberg wrote.

These circumstances pose a legal challenge for Pirro because the Supreme Court generally disfavors piecemeal appeals. It has not specifically ruled on the question of whether a quashed criminal subpoena can be appealed. And it has shown in other cases that it doesn't want to encourage litigants to halt proceedings any time a party wants to dispute a judge's decisions. Appeals courts generally review an entire legal proceeding in one go, rather than assessing each motion individually. 

To move forward, Pirro will need to argue that Boasberg effectively ended her investigation by quashing the subpoenas. 

"Multiple federal courts of appeals have ruled that an order quashing a grand jury subpoena is an appealable order," Pirro said Wednesday in an interview when asked about the prospects for her appeal.

Even if courts agree that Pirro is entitled to an appeal, she may not win. That could blow back on her. "Sometimes you don't appeal issues even if there's a chance that you win, because sometimes you create bad case law for yourself," Murphy said.

Murphy resigned in March 2025 as assistant U.S. attorney in the appellate section for the District of Puerto Rico. He told NPR at the time he no longer wanted to be associated with the Justice Department.

That broader political context will continue to be a factor in future proceedings. Like Boasberg, other judges will question the government's potential political motivations in pursuing the Fed investigation, said Jeffrey Bellin, a law professor at Vanderbilt University. He was a law clerk at the U.S. Court of Appeals for the D.C. Circuit and worked as a prosecutor in the office Pirro now runs.

"This is part of the reason that the DOJ has long sought to remain independent and non-partisan," Bellin said. "Once it loses the benefit of the doubt, it is difficult to gain that trust back and that decreases the odds of success across the spectrum of cases."