The Trump administration defended Alina Habba’s installation as New Jersey’s top federal prosecutor before a skeptical federal appeals panel Monday.
A three-judge panel on the U.S. Court of Appeals for the 3rd Circuit did not seem swayed that Habba, a former personal attorney to President Trump, is lawfully serving as New Jersey’s acting U.S. attorney.
“Would you concede that there are serious constitutional implications to your theory here, the government’s theory, which really is a complete circumvention, it seems, of the Appointments Clause?” asked Judge D. Brooks Smith, an appointee of former President George W. Bush.
Habba was disqualified in August from participating in any of the District of New Jersey’s cases as U.S. attorney, though the ruling was put on hold so the Justice Department (DOJ) could appeal.
A federal judge determined she had unlawfully held the post since July, when her 120-day interim term expired, and the Trump administration maneuvered to keep her in the role through a “novel series of legal and personnel moves.”
When Habba’s interim term ended, New Jersey federal judges declined to extend her interim status, instead appointing her first assistant U.S. attorney to the post. But Attorney General Pam Bondi fired their selected successor.
So Habba could remain in the position, Trump withdrew her nomination to be the state’s U.S. attorney. She was appointed both as a special attorney with all the powers of U.S. attorney and as a first assistant, making her acting U.S. attorney.
DOJ lawyer Henry Whitaker argued Monday the moves were valid under federal law, saying Congress afforded the executive branch several “overlapping mechanisms” to deal with vacancies in Senate-confirmed positions, like U.S. attorneys.
“In this case, the executive branch admittedly took a series of precise and precisely timed steps, not to evade or circumvent those mechanisms, but rather to be scrupulous and careful as we comply with them,” Whitaker said.
He contended that the administration is applying the statutes as Congress wrote them, despite the law sometimes requiring the government to “jump through a lot of hoops to get there.”
“No doubt,” replied Judge L. Felipe Restrepo, an appointee of former President Obama.
Two New Jersey defendants facing federal drug trafficking charges brought the challenge to Habba’s appointment, contending she did not have the authority to prosecute them after her clock as interim U.S. attorney ran out.
Abbe Lowell, a prominent Washington attorney who has represented several Trump opponents, argued their case before the panel of judges.
He claimed the government is constructing a “jerry-rigged” way to keep Habba in power in perpetuity, in contradiction with the way the law has historically been applied.
“In their interpretation of this delegation function, the only thing she doesn’t have is that certificate on the wall that says ‘United States Attorney for the District of New Jersey,’” Lowell said. “But for that, and what they used to call the gravitas of having that title, she can do everything.”
James Pearce, who worked under former special counsel Jack Smith and handled the challenge to his appointment, also argued against Habba’s installation, on behalf of the Association of Criminal Defense Lawyers of New Jersey.
He said that greenlighting the maneuver that enabled Habba to stay in her post would essentially allow the attorney general to set up a “shadow government of delegated U.S. attorneys throughout the country.”
“That just can’t be right,” Pearce said.
Habba cast the argument as a far bigger fight, suggesting in a statement that her legal battle was one of advocacy on behalf of the “26 U.S. Attorney candidates who have been denied the opportunity for a Senate hearing.”
She was referring to the invocation of blue slips, the practice that lets home-state senators veto presidential nominees to district courts and U.S. attorneys’ offices.
Both of New Jersey’s senators, Democrats Cory Booker and Andy Kim, opposed Habba’s nomination as the state’s top federal prosecutor. However, her nomination was withdrawn to allow her to remain in her position — the issue at the heart of the appeal heard Monday.
Nonetheless, Habba said the practice demonstrates a “politically motivated effort” to impede Trump’s authority to appoint top prosecutors across the country.
“The President appoints individuals to carry out the mission of this administration and that mandate should be respected,” she wrote on X.
Trump has also expressed frustration over his ability to push through his preferred U.S. attorneys. He said Thursday he has “eight GREAT Republican U.S. Attorney Candidates who will not be able to fulfill their service to the people of a state that voted overwhelmingly for me.”
“The only one I can appoint is a Democrat, and that’s not the deal,” Trump wrote on Truth Social. “Nobody can say that is fair or, even, Constitutional.”
Nevada acting U.S. Attorney Sigal Chattah, another Trump loyalist, was disqualified from supervising several criminal cases after a judge ruled last month that her authority expired when her interim term ended. The administration has appealed.
Though only Habba and Chattah have so far been found to be illegally holding their posts, other challenges are pending or imminent. It could bring the fight even closer to home for Trump.
On Monday, former FBI Director James Comey followed through on his vow to challenge Trump’s installation of Lindsey Halligan, the newly minted interim U.S. Attorney for the Eastern District of Virginia.
Halligan was tapped by the president after the previous top prosecutor resigned amid pressure to indict Comey, a longtime Trump adversary, just days before the statute of limitations was set to expire. She was a White House aide and had no prior prosecuting experience before taking over the office.
Comey contends Halligan was unlawfully appointed and that her signature on his indictment renders it void.
“The United States cannot charge, maintain, and prosecute a case through an official who has no entitlement to exercise governmental authority,” lawyer Jessica Carmichael wrote in a motion to dismiss Comey’s charges with prejudice, meaning they could not be brought again.
The former FBI director pleaded not guilty earlier this month to false statements and obstruction charges stemming from 2020 testimony he gave Congress. A trial is set for Jan. 5.
Carmichael noted that, in the challenge to Habba’s appointment, the charges were not dismissed against the criminal defendants who brought it because other “properly serving” government lawyers were directly involved in procuring their indictments. The same is not so in Comey’s case, she said.
“Here, by contrast, career and appointed prosecutors found insufficient evidence upon which to indict Mr. Comey and thus did not participate in this case,” Carmichael wrote. “Mr. Comey was charged only because Ms. Halligan was unlawfully appointed and then personally secured and signed the indictment acting alone.”
Trump’s chief federal prosecutor in the district covering Los Angeles, Bill Essayli, faces a legal challenge to his appointment that is ongoing. A maneuver like Habba’s kept acting U.S. Attorney John Sarcone III in his role when judges refused to extend his interim term overseeing prosecutions in the Northern District of New York, as well.