A federal appeals court ruled Monday that President Donald Trump acted unlawfully when he maneuvered to keep his former personal attorney, Alina Habba, in place as the top federal prosecutor in New Jersey — a decision that could have major consequences for other Trump-era appointments facing legal challenges.
In a unanimous opinion, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit rejected the unusual steps the Justice Department took to avoid Senate confirmation and preserve Habba’s position. The ruling marks the first time an appellate court has weighed in on the legality of Trump’s U.S. attorney appointments, several of which are under scrutiny across the country.
The panel upheld a lower court’s decision disqualifying Habba. The broader question of whether her appointment violated the Federal Vacancies Reform Act is widely expected to end up before the Supreme Court.
“It is apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place,” Judge D. Michael Fisher, appointed by President George W. Bush, wrote in the opinion. “Its efforts to elevate its preferred candidate for U.S. Attorney for the District of New Jersey, Alina Habba, to the role of Acting U.S. Attorney demonstrate the difficulties it has faced — yet the citizens of New Jersey and the loyal employees in the U.S. Attorney’s Office deserve some clarity and stability.”
Judges L. Felipe Restrepo, appointed by President Barack Obama, and D. Brooks Smith, also appointed by Bush, joined Fisher on the panel.
While Monday’s ruling formally addresses only Habba’s appointment, it is likely to influence challenges to other interim U.S. attorneys who were kept in office through similar procedural maneuvers, including those serving in California, Arizona, New Mexico and New York.
A related dispute over the appointment of Lindsey Halligan as U.S. attorney in the Eastern District of Virginia led just last week to the dismissal of cases against former FBI director James B. Comey and New York Attorney General Letitia James.
Federal law allows the attorney general to appoint an interim U.S. attorney for 120 days. If no Senate-confirmed nominee is in place when that period ends, judges in the relevant district may select an acting replacement.
In many instances, judges simply extend the tenure of the interim or acting officeholder. Roughly a dozen of Trump’s lower-profile interim U.S. attorneys have had their terms continued in this way.
Habba’s situation in New Jersey unfolded differently. The district’s federal judges voted not to extend her interim term and instead appointed a veteran prosecutor who had been serving as her chief deputy. Attorney General Pam Bondi then publicly criticized the judges’ decision and fired the successor they had chosen.
Bondi subsequently named Habba to the now-vacant chief deputy role. Because no one was serving as U.S. attorney at that moment, Habba, as the newly installed No. 2 official, assumed command of the office in an acting capacity.
Several defendants facing federal charges in New Jersey moved to dismiss their indictments, arguing that Habba’s appointment was unlawful and tainted the prosecutions.
Both the district court and the appeals court agreed that Habba’s appointment was invalid, though they declined to throw out the charges.
In contrast to the Comey and James cases — where Halligan personally took the unusual step of presenting matters directly to the grand jury — the New Jersey prosecutions were overseen day to day by career prosecutors working under Habba’s supervision.
Defense lawyers welcomed the ruling.
“The court’s decision affirms that U.S. Attorney Alina Habba is unlawfully and invalidly serving as the chief federal law enforcement officer in New Jersey, marking the first time an appellate court has ruled that President Trump cannot usurp longstanding statutory and constitutional processes to insert whomever he wants in these positions,” attorneys Abbe Lowell, Gerry Krovatin and Norm Eisen, who represent a defendant facing fraud charges, said in a statement Monday.
“We will continue to challenge President Trump’s unlawful appointments of purported U.S. Attorneys wherever appropriate,” they added.
The Senate has not taken up Habba’s nomination since it was submitted. New Jersey’s Democratic senators, Cory Booker and Andy Kim, have opposed her confirmation, arguing that she has behaved as a “partisan warrior” rather than an impartial enforcer of federal law.
Before taking on the U.S. attorney role, Habba had no experience as a prosecutor. She has represented Trump in several civil matters, including a defamation case brought by writer E. Jean Carroll.
Just last week, a federal appeals court upheld a lower court’s finding that Habba and Trump are jointly liable for $1 million in sanctions for filing frivolous lawsuits against Comey and Hillary Clinton.
