On Monday, the 3rd U.S. Circuit Court of Appeals upheld a district court decision that disqualified Alina Habba, President Trump’s former personal attorney, from serving as the acting U.S. attorney in New Jersey – affirming that her appointment violated the Federal Vacancies Reform Act.
In a unanimous ruling, the court concluded that Habba was unlawfully elevated to the role of acting U.S. attorney. The panel found that the administration’s multi-step strategy to keep her in the job sidestepped both statutory limits and the constitutional requirement for Senate confirmation.
The dispute traces back to March, when Trump first named Habba interim U.S. attorney — a temporary appointment capped at 120 days unless extended by the district court or confirmed by the Senate. Her nomination stalled after New Jersey’s Democratic senators opposed her confirmation. As her interim tenure neared its end, district judges voted to elevate her deputy, Desiree Leigh Grace, instead. Attorney General Pam Bondi then fired Grace and placed Habba in a series of roles — including “Special Attorney to the Attorney General” and first assistant U.S. attorney — to position her to once again become acting U.S. attorney under the Vacancies Act. The appeals court concluded the maneuver was improper and that the FVRA’s “nomination bar” also prevented Habba, as a pending nominee, from serving in an acting capacity.
In its decision, the 3rd Circuit stressed that allowing the administration’s approach would “bypass the constitutional [presidential appointment and Senate confirmation] process entirely” and effectively nullify the limits Congress established on who may serve as a U.S. attorney. Judge Michael Fisher, writing for the three-judge panel, said “It is apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place,” adding that the steps taken to install Habba ultimately violated federal law. The court rejected the Justice Department’s argument that designating Habba as a “special attorney” allowed the attorney general to delegate her the full powers of the office, noting, “This delegation theory would create a means for the Department of Justice to circumvent the FVRA’s exclusivity provision, effectively permitting anyone to fill the U.S. Attorney role indefinitely. This should raise a red flag.”
Habba’s appointment became the subject of legal challenges after three criminal defendants in New Jersey argued that she had no lawful authority to oversee their cases and sought to have their indictments dismissed. The district court declined to throw out the charges but agreed she had been improperly installed.
In a joint statement, attorneys Abbe Lowell, Gerry Krovatin, and Norm Eisen said the ruling confirms that “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.” Another defense lawyer, Thomas Mirigliano, added that “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.”
The ruling leaves the New Jersey post vacant until a lawfully appointed and confirmed U.S. attorney is installed.
Editorial credit: Joe Tabacca / Shutterstock.com
