Alina Habba, President Donald Trump’s nominee to be New Jersey’s top U.S. attorney, was not legally appointed to the position, according to a federal appeals court ruling.
This Monday (1st), the United States Court of Appeals for the 3rd Circuit confirmed the decision of a lower court, which found that the Trump administration illegally appointed Habba as acting prosecutor after the 120-day period of her temporary appointment had expired.
“We will affirm the district court’s order of disqualification,” wrote D. Michael Fisher, an appointee of President George W. Bush, on behalf of a three-judge panel.
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The decision comes as the Trump administration faces multiple legal challenges over its practice of placing allies in top federal prosecutor roles on an interim basis after failing to gain Senate approval for four-year appointments. On November 24, a federal judge dismissed criminal charges against former FBI Director James Comey and New York Attorney General Letitia James, ruling that the prosecutor responsible, Lindsey Halligan, had been illegally appointed.
Habba and the Justice Department did not immediately respond to requests for comment.
The panel reviewed an Aug. 21 ruling by U.S. District Judge Matthew Brann, who found the Trump administration skirted the law to appoint Habba. Several criminal defendants have questioned her legal authority to prosecute them.
Habba, Trump’s former personal lawyer, was first appointed on March 28. Trump also nominated her for a four-year term, but New Jersey senators, Democrats Cory Booker and Andy Kim, declared her unqualified.
Grace fired
When Habba’s interim term expired, New Jersey federal judges appointed his chief assistant, Desiree Grace, to the position. But Attorney General Pam Bondi fired Grace, and the administration took a series of unusual steps to elevate Habba to the positions of “special prosecutor” and acting prosecutor. Trump also withdrew his nomination before the Senate.
Brann, chief judge of the Middle District of Pennsylvania, was appointed to review Habba’s nomination. He concluded that the Trump administration used an inappropriate device to avoid the 120-day limit on interim appointments, which could allow the president to appoint U.S. attorneys for a full term “without seeking the advice and consent of the Senate.” He also stated that it violated the Federal Vacancies Reform Act (FVRA).
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The appellate panel included 3rd Circuit Judge L. Felipe Restrepo and Senior Judges D. Brooks Smith and Fisher. Restrepo was nominated by former President Joe Biden, and Smith and Fisher were nominated by Bush.
They ruled that the FVRA prevents someone from serving in an interim capacity if the president has submitted his or her nomination to the Senate, even if it is not currently pending.
“Nothing in the law indicates that the ban is lifted when the appointment is no longer pending,” the panel wrote. As a result, “the ban on appointment prevents Habba from serving as acting attorney under the FVRA.”
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The judges also refuted arguments from the Justice Department that Bondi could delegate prosecutorial powers to Habba. “Under the government delegation theory, Habba could avoid the presidential nomination and Senate confirmation process and serve as de facto U.S. Attorney indefinitely,” they wrote.
“Warning sign”
Such an indefinite appointment “should raise a red flag given the strict temporal limits” in the FVRA and other law dealing with U.S. attorney appointments, the appeals court wrote.
During oral arguments, Smith cited a long sequence of events, including: Grace’s firing; the Senate’s withdrawal of Habba’s nomination; her resignation as acting prosecutor; her appointment as special counsel to the attorney general; his appointment to the assistant principal position vacated by Grace; and his elevation to acting prosecutor.
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“Can you name any example” of such a sequence “in the appointment of a United States attorney?” asked the judge. A Justice Department lawyer said no.
Challenges continue for other Trump administration appointments. On October 28, a federal judge ruled that Bill Essayli was illegally appointed as acting prosecutor in Los Angeles but allowed him to remain as the office’s top prosecutor. Another judge had previously ruled that Nevada’s acting U.S. attorney, Sigal Chattah, was also illegally appointed.
The ruling comes days after another appeals court upheld fines of nearly $1 million against Trump and Habba for a “frivolous” civil case against Hillary Clinton three years ago, when Trump was a private citizen. Habba represented Trump in the case, which was dismissed by a federal judge in Florida who found the complaint an inadequate political “manifesto.”
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