Habba Blocked as New Jersey US Attorney by Appeals Court (3)

Alina Habba, President Donald Trump’s pick to be the top US prosecutor in New Jersey, was not lawfully appointed to the job, a federal appeals court ruled.

The 3rd US Circuit Court of Appeals on Monday upheld a lower-court ruling that the Trump administration unlawfully named Habba as acting US attorney when her appointment on an interim basis expired after 120 days.

The ruling comes as the Trump administration faces several legal challenges to its pattern of placing loyalists in top federal prosecutor posts on an acting basis after they fail to win US Senate approval for four-year appointments. On Nov. 24, a federal judge threw out criminal charges against former FBI Director James Comey and New York Attorney General Letitia James, ruling that the prosecutor who brought the cases, Lindsey Halligan, had been illegally appointed.

The ruling shows “President Trump cannot usurp longstanding statutory and constitutional processes to insert whomever he wants in these positions,” Abbe Lowell, a lawyer for James, said in a statement.

Habba and the Justice Department didn’t immediately return messages seeking comment. Habba had been continuing to work during the appeals and the Justice Department could ask the Supreme Court to review the case.

The panel reviewed an Aug. 21 ruling by US District Judge Matthew Brann that the Trump administration circumvented the law to appoint Habba. Several criminal defendants had challenged her legal authority to prosecute them.

Habba, a former personal attorney for Trump, was first appointed March 28. Trump also nominated her for a four-year term but New Jersey’s senators, Democrats Cory Booker and Andy Kim, both said she was unqualified.

Grace Fired

When Habba’s interim term expired, New Jersey’s federal judges then appointed her first assistant, Desiree Grace, to the job. But Attorney General Pam Bondi fired Grace and the administration executed a series of unusual steps to elevate Habba to the positions of “special attorney” and acting US attorney. In doing so, Trump also withdrew her nomination before the Senate.

Brann, the chief judge in the Middle District of Pennsylvania, was assigned to review Habba’s appointment. He concluded the Trump administration used an improper workaround to avoid the 120-day limit for interim appointments, which he said could let the president appoint US attorneys for an entire term “without seeking the Senate’s advice and consent.” He also said it ran afoul of the Federal Vacancies Reform Act, or FVRA.

The appellate panel included 3rd Circuit Judge L. Felipe Restrepo and Senior Judges D. Brooks Smith and D. Michael Fisher. Restrepo was appointed by former President Joe Biden while Smith and Fisher were tapped by President George W. Bush.

They ruled that the FVRA bars someone from serving on an acting basis if the president submitted their nomination to the Senate, even if it’s not pending at the time.

“Nothing in the statute indicates the bar lifts when a nomination is no longer pending,” the panel wrote. As a result, “the nomination bar prevents Habba from serving as Acting US Attorney under the FVRA.”

The judges also refuted arguments by the Justice Department that Bondi could delegate the US attorney’s powers to Habba. “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,” they wrote.

‘Red Flag’

Such an indefinite appointment “should raise a red flag, given the careful time limitations” in the FVRA and another law that deals with US attorney appointments, Fisher wrote for the appeals court.

During oral arguments, Smith cited a long chain of events, including: Grace’s firing; Trump’s withdrawal of Habba’s nomination to the Senate; her resignation as interim US attorney; her appointment as special attorney to the attorney general; her appointment to the first assistant post vacated by Grace; and her elevation to acting US attorney.

“Can you come up with an example of any kind” of such a sequence of events regarding “the appointment of the United State attorney?” the judge asked. A Justice Department lawyer said he could not.

Challenges are ongoing to other Trump administration appointments. On Oct. 28, a federal judge ruled that Bill Essayli was unlawfully appointed as acting US attorney in Los Angeles, but allowed him to stay on as a top supervising prosecutor in the office. Another judge had ruled earlier that Nevada’s acting US attorney, Sigal Chattah, was also unlawfully installed.

The decision comes days after a different appeals court upheld nearly $1 million in penalties against Trump and Habba over the president’s filing of a “frivolous” civil lawsuit against Hillary Clinton three years ago, when Trump was a private citizen. Habba represented Trump in the case, which was tossed out by a federal judge in Florida who said it the complaint was an improper political “manifesto.”

(Adds lawyer comment in fourth paragraph)

--With assistance from Erik Larson.

To contact the reporters on this story:
David Voreacos in New York at dvoreacos@bloomberg.net;
Celine Castronuovo in Arlington at ccastronuovo@bloomberg.net

To contact the editors responsible for this story:
Misyrlena Egkolfopoulou at megkolfopoul@bloomberg.net

Anthony Aarons

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