Washington — A federal appeals court on Monday upheld a lower court decision that disqualified Alina Habba, who served as a personal lawyer to President Trump, as the acting U.S. attorney in New Jersey.
The decision from the U.S. Court of Appeals for the 3rd Circuit was unanimous against the Trump administration, which has attempted to use a novel mechanism to place lawyers who have not received Senate approval into temporary U.S. attorney positions across the country.
The case before the 3rd Circuit arose after three men facing criminal charges in New Jersey challenged the validity of Habba’s appointment as a violation of the Federal Vacancies Reform Act and sought to have their indictments dismissed.
U.S. District Judge Matthew Brann ruled in August that Habba has been serving without lawful authority since the beginning of July, when she was tapped to temporarily lead the U.S. Attorney’s Office in New Jersey. Brann said she must be disqualified from participating in ongoing cases.
The Justice Department appealed that decision to the 3rd Circuit, which is now the first federal appeals court to weigh in on the administration’s scheme for installing certain U.S. attorneys.
“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,” lawyers Abbe Lowell, Gerry Krovatin and Norm Eisen said in a joint statement. “We will continue to challenge President Trump’s unlawful appointments of purported U.S. attorneys wherever appropriate.”
Lowell argued before the 3rd Circuit, and Krovatin represents one of the defendants.
Thomas Mirigliano, a lawyer who represented a second defendant, said “the panel issued a clear and carefully reasoned decision that recognizes the extraordinary power vested in U.S. attorneys and reinforces the limits Congress has set on who may occupy those positions. We appreciate the Court’s thoughtful approach and the clarity it brings to this important issue.”
Neither Habba nor the Justice Department immediately responded to requests for comment.
Habba was tapped to serve as interim U.S. attorney in New Jersey earlier this year, but her appointment to the role was limited to 120 days, unless the U.S. district court in New Jersey voted to extend her tenure or she was confirmed to the post by the Senate. Habba’s nomination, however, was unlikely to win approval in the upper chamber, as New Jersey’s two senators, Democrats Cory Booker and Andy Kim, opposed her nomination.
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Ahead of the 120-day deadline, the judges in New Jersey declined to allow Habba to continue serving as U.S. attorney and instead voted to install her deputy, Desiree Leigh Grace, to the position. But that decision was met with swift pushback from Attorney General Pam Bondi, who fired Grace.
Then, Mr. Trump and top administration officials employed a multi-step maneuver to keep Habba in the role of U.S. attorney and get around the district court’s decision. First, the president withdrew Habba’s nomination for U.S. attorney in New Jersey. Then, Habba resigned as interim U.S. attorney. Bondi then appointed Habba as “special attorney” and to fill Grace’s role as first assistant U.S. attorney. Finally, because the position as the New Jersey’s top prosecutor was vacant, Habba was elevated to the role of acting U.S. attorney under the Federal Vacancies Reform Act.
That law, also known as the Vacancies Act, limits the government employees who can temporarily fill the roughly 1,300 federal offices that require nomination by the president and confirmation by the Senate.
In their decision, the judges on the 3rd Circuit found that the Trump administration’s argument in support of Habba’s role “should raise a red flag,” since it would allow the Justice Department to circumvent the Vacancies Act and effectively allow anyone to hold a U.S. attorney position indefinitely.
“Under the Government’s delegation theory, Habba may avoid the gauntlet of presidential appointment and Senate confirmation and serve as the de facto U.S. Attorney indefinitely,” Judge Michael Fisher wrote for the court. “This view is so broad that it bypasses the constitutional [presidential appointment and Senate confirmation] process entirely. It also essentially eliminates the requirements of the FVRA and the U.S. Attorney-specific statute.”
Fisher was selected for the 3rd Circuit by President George W. Bush. He was joined in the decision by Judge L. Felipe Restrepo, appointed by President Barack Obama, and Judge D. Brooks Smith, tapped for the 3rd Circuit by Bush.
The Trump administration has sought to install temporary U.S. attorneys in Nevada and Los Angeles using the mechanism it employed for Habba, but has faced resistance from the courts. The most high-profile of those decisions came last week, when a federal judge ordered the criminal charges against former FBI Director James Comey and New York Attorney General Letitia James to be dismissed on the grounds that Lindsey Halligan, the interim U.S. attorney who secured their indictments, was unlawfully appointed to the role.
