The Trump administration suffered another setback Monday when an appellate court decided that Alina Habba, a MAGA loyalist, is unlawfully serving as New Jersey’s U.S. attorney.
The ruling by the Third Circuit Court of Appeals was unanimous. All three judges concluded that Habba can’t stay in power, because none of the tactics used to keep her in charge were legitimate.
The court’s ruling affirmed a trial judge’s decision in August that disqualified Habba from running the New Jersey office. The ruling means that Habba has not had the legal authority to command criminal investigations since her term technically expired July 1.
Last month, NOTUS found that Habba has signed off on more than 28 indictments since her term expired — casting doubt on a wide range of federal actions and investigations.
Trending
Sign Up for NOTUS’ Free Daily Newsletter
The decision came just a week after a federal judge disqualified another federal prosecutor close to President Donald Trump, Lindsey Halligan in Virginia, who was handpicked to criminally indict two of his political enemies: former FBI Director James Comey and New York Attorney General Letitia James. And it follows yet another federal judge’s decision in September to disqualify Sigal Chattah, who leads the U.S. Attorney’s office in Nevada.
On Monday, the panel acknowledged that the Trump White House has had a difficult time getting certain prosecutorial candidates approved by Congress. But the judges said that was no excuse for circumventing the law. The panel included Judge Michael Fisher, a President George W. Bush appointee; D. Brooks Smith, a Reagan pick; and Luis Restrepo, selected by Obama.
“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,” Fisher wrote.
Habba, who first entered Trump’s orbit in 2021 during his four-year interregnum under circumstances that have led to an ethics investigation, has remained one of his most steadfast loyalists. Having started out as a member of his Bedminster golf club in New Jersey, Habba became his defense lawyer in various civil cases accusing him of bank fraud and defaming a journalist who said Trump raped her — then later became a campaign spokesperson and briefly served as his personal attorney at the White House.
Trump has insisted on keeping Habba in a position of power. Attorney General Pam Bondi’s initial appointment to lead New Jersey’s federal prosecution office, John Giordano, lasted just three weeks as interim U.S. attorney until he was replaced by Habba with the same title. But as the 120-day clock ran out on that interim appointment without a Senate vote, federal judges in the district exercised their constitutional authority to pick her successor. When the judges went the traditional route by elevating Desiree Grace, a career prosecutor serving as the office’s first assistant U.S. attorney, Bondi quickly fired Grace and gave Habba her job and title — an attempt to slip Habba back into the leadership role as the “acting U.S. attorney.” The White House also formally withdrew Habba’s nomination in an attempt to reset a 210-day clock for “acting” status.
Appellate judges criticized this Trump administration strategy by pointing to the Federal Vacancies Reform Act, noting that the White House couldn’t game the system by merely giving Habba the career job title — nor could it yank her nomination just to buy more time on the calendar.
“Habba is not the Acting U.S. Attorney for the District of New Jersey by virtue of her appointment as First Assistant U.S. Attorney because only the first assistant in place at the time the vacancy arises automatically assumes the functions and duties of the office under the FVRA. Additionally, because Habba was nominated for the vacant U.S. Attorney position, the FVRA’s nomination bar prevents her from assuming the role of Acting U.S. Attorney,” they ruled.
Habba did not immediately respond to a request for comment Monday morning.
The latest news marks her second personal setback in less than a week. Last Wednesday, another federal appellate court, the Eleventh Circuit, affirmed a lower court’s order that slapped Habba and Trump with $1 million in sanctions for wasting the court’s time with a “frivolous” lawsuit against Hillary Clinton.
Author
