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Monday morning, the Third Circuit Court of Appeals ruled that Trump’s appointee to be U.S. Attorney in the District of New Jersey, Alina Habba, had been improperly appointed. In a 32-page opinion, the 3-0 majority wrote, “These cases require us to consider … whether Habba is lawfully acting as U.S. Attorney for the District of New Jersey … or has been lawfully delegated the full scope of powers of an Acting U.S. Attorney. The defendants in two criminal cases moved to dismiss their indictments and to disqualify Habba from participating in their prosecutions, arguing that she is unlawfully serving as Acting U.S. Attorney. The District Court denied the motions to dismiss, but it granted the motions to disqualify Habba from the prosecutions. The Government appeals. We will affirm.” One of the panel judges was appointed by President Biden. The other two are Bush appointees.
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The opinion begins by pointing out that “The United States Attorneys’ offices are some of the most critical agencies in the Federal Government. They play an important role in the criminal and civil justice systems and are vital in keeping our communities safe. The U.S. Attorney leading each office is an officer whose appointment requires Senate confirmation. Where a vacancy exists, Congress has shown a strong preference that an acting officer be someone with a breadth of experience to properly lead the office.” The judges continue, acknowledging, in a very pragmatic way, the political realities of the situation they are injected into by this case, “It is apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place. 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.”
The court then clarifies the task it faces. It must decide whether the administration has complied with one of the mechanisms Congress has created for putting a temporary placeholder in office when a Senate-confirmed U.S. Attorney resigns, until their replacement can be confirmed. The court notes that “the generally applicable Federal Vacancies Reform Act (FVRA) authorizes certain people to perform that officer’s duties in an acting capacity subject to time limitations.” There are also other routes to temporarily filling the position: “other statutes expressly authorize the President, a court, or the head of an agency to designate someone to perform the duties of specified offices in an acting or interim capacity.”
The case arose when defendants in criminal cases challenged their prosecutions, arguing Habba hadn’t been properly appointed. Both the district court and the appellate court rejected their requests to have their prosecutions dismissed. The issue the appellate court took up was, “whether Habba is lawfully acting as U.S. Attorney for the District of New Jersey under the FVRA or has been lawfully delegated the full scope of powers of an Acting U.S. Attorney.” There are other prosecutors in the district involved in the challenged cases, and they can proceed. But Habba is disqualified from participation in the cases.
The statutory framework for who can serve as a replacement can get complicated. There are experience and time limits imposed. But the key point is that Congress intends for presidents to go to the Senate for confirmation proceedings if they want to put their appointees in place. Although the Attorney General may appoint someone to act as an interim U.S. Attorney, that appointment is only good for 120 days, and after that, it’s up to the local district court to appoint a replacement, who stays in place until the president gets a nominee confirmed.
Here’s the New Jersey timeline:
On January 8, 2025, the presidentially appointed and Senate-confirmed U.S. Attorney for the District of New Jersey, Phillip R. Sellinger, resigned.
The office’s First Assistant, the number two person, became the Acting U.S. Attorney under the FVRA.
On March 3, Attorney General Pam Bondi appointed John Giordano as Interim U.S. Attorney for New Jersey under a statute that permits her to do so.
Giordano resigned three weeks later, and Bondi appointed Habba as Interim U.S. Attorney.
On June 30, President Trump nominated Habba for the permanent role. The Senate has not acted on her nomination.
As the 120-day period Habba could serve for under the FVRA drew to a close, the district court issued a notice that Desiree Grace, Habba’s First Assistant U.S. Attorney, was their choice to be Interim U.S. Attorney when Habba’s term expired.
DOJ responded by firing Grace, a highly regarded prosecutor who had served in numerous supervisory roles for close to a decade.
On July 24, the administration withdrew Habba’s nomination to be U.S. Attorney. Habba resigned as the Interim and Bondi issued an order appointing her as a “Special Attorney” to the AG and purporting to authorize her to conduct “any kind of legal proceedings.” Then Bondi appointed her First Assistant in New Jersey, which meant that as had happened early on, with the U.S. Attorney’s position vacant, the First Assistant, now Habba, became the Acting U.S. Attorney.
Faced with the challenge to the legitimacy of Habba’s appointment, the court determined that the law that designates a First Assistant to automatically serve when the presidentially appointed and Senate-confirmed U.S. Attorney (PAS) resigns only applies “to a person in place at the time of a PAS officer’s resignation.” They also determined that a provision of the FVRA that provides that “a person may not serve as an acting officer for an office under this section, if … the President submits a nomination of such person to the Senate for appointment to such office,” meant that Habba could not properly be appointed. The court also rejects the notion that the administration can do an end run around these legal provisions by having the Attorney General appoint a person to serve as their special assistant.
Having run through and rejected all of the government’s various options for permitting Habba to serve, the Court of Appeals affirmed the district court’s order disqualifying her. This case presents a similar issue, although the facts are different, to the one involving Lindsey Halligan’s appointment to be U.S. Attorney in the Eastern District of Virginia. It’s likely that the government will now appeal the case to the Supreme Court. As long as these cases linger, there is uncertainty for both prosecutors’ offices and courts. The government will certainly have to avoid situations like the one where Halligan was the sole person presenting an indictment to a grand jury and the court.
Justice is best served by stability and certainty. It’s unusual for DOJ to inject doubt into its cases unnecessarily. The easiest path forward would be to follow the standard rule and let courts appoint interim U.S. Attorneys while the president moves his nominees forward to Senate confirmation. But this administration has not led with sensibility in this regard. There have also been challenges to the appointment of a California U.S. Attorney and another in Nevada. It’s the government’s move. We’ll watch to see what it does next.
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Joyce
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