The Trump administration’s efforts to keep Alina Habba as acting U.S. Attorney for the District of New Jersey faced a key test today, as the Third Circuit Court of Appeals heard oral arguments about whether or not to overrule a district judge’s August ruling disqualifying Habba from her role.
The Third Circuit’s three-judge panel – consisting of Senior Judges D. Brooks Smith and D. Michael Fisher, both George W. Bush appointees, and Judge L. Felipe Restrepo, an Obama appointee – did not say when a ruling should be expected in the case, which has nationwide implications for President Donald Trump’s powers to appoint key officials without any input from the Senate or the federal judiciary.
Smith, Fisher, and Restrepo had incisive questions for both sides of the thorny legal and political issue in court today. But the judges were particularly interested in probing some of the government’s arguments in favor of Habba, noting that they would effectively give presidential administrations the power to circumvent the checks-and-balances otherwise placed on presidential appointment powers.
“Would you concede that the sequence of events here – for me, they’re unusual, and we can recite them if you wanted to take the time – would you concede that there are serious constitutional implications to your theory, the government’s theory, which really is a complete circumvention, it seems, of the appointments clause?” asked Senior Judge D. Brooks Smith, a Bush appointee.
Henry Whitaker, an Assistant U.S. Attorney General who argued the case for the government, said several times that he did not believe there to be anything especially unprecedented about the arrangement by which Habba was granted the power to continue serving as U.S. Attorney.
“There’s nothing unusual about the current status quo in the District of New Jersey, where you have an acting official who is serving and there is no present nominee,” Whitaker said. “That’s a circumstance that Congress explicitly contemplated would occur.”
Whitaker also made two notable statements about the government’s position on U.S. Attorney vacancies: that a successive series of 120-day interim appointments are allowed “in certain circumstances”, and that Habba’s appointment as acting U.S. Attorney is set to expire in February, 210 days after her appointment. The former argument was shot down in Judge Matthew Brann’s District Court ruling; the latter would only go into effect if Brann’s opinion is reversed and Habba is allowed to stay on as acting U.S. Attorney.
Habba first took office as interim U.S. Attorney – a position distinct from acting U.S. Attorney – in late March, after Trump chose her to replace John Giordano, himself an interim U.S. Attorney who had been in office for just three weeks. (After making way for Habba, Giordano was instead nominated to be U.S. Ambassador to Namibia, a position to which he was confirmed by the U.S. Senate earlier this month.)
Interim U.S. Attorney appointments come with 120-day time limits, and when Habba’s appointment was set to expire, New Jersey’s District Court judges voted not to retain her and instead appointed First Assistant U.S. Attorney Desiree Grace to succeed her. Then, in a dizzying series of events, Attorney General Pam Bondi fired Grace and appointed Habba to replace her as First Assistant, elevating her to acting U.S. Attorney under the Federal Vacancies Reform Act. Bondi additionally named Habba as “Special Attorney to the U.S. Attorney General,” with authority over the District of New Jersey.
Habba’s pending nomination for a full term as U.S. Attorney was also withdrawn from the Senate; Senators Cory Booker and Andy Kim had effectively blocked Habba from being confirmed, and pending nominees are prevented by law from serving as acting officials. (Habba said on social media following the hearing today that she has “not had so much as a single conversation with New Jersey Senators, despite repeated outreach.”)
The sequence of maneuvers, evidently designed to allow Habba to stay in office without Senate confirmation, quickly drew challenges from two New Jersey defendants who said Habba and her office did not have the legal authority to prosecute them. Lawyer Abbe Lowell, speaking in the Third Circuit today on behalf of both defendants, said that the government had improperly cobbled together different laws solely for the purpose of retaining Habba.
“The government cites a chimera of seven different statues, that they alternate depending on what they are trying to accomplish, to call her the interim U.S. Attorney, an acting U.S. Attorney, a First Assistant U.S. Attorney, or a Special Attorney,” Lowell said.
Whitaker said at a different point in the hearing that the Trump administration has constrained itself to existing law at every point.
“We are not asking for a limitless power to designate acting officials,” he said. “We colored inside the lines here. The lines are complex, and that’s why we had to take those complicated steps.”
Brann largely agreed with Lowell’s argument in his August ruling, writing that the Trump administration’s maneuvers ran afoul of the law in several ways. He stayed his own ruling pending appeal, however, meaning that Habba remains in office for now and legal proceedings in New Jersey have become stuck in limbo.
During oral arguments today, the three Third Circuit judges dove deeply into a few key pieces of Brann’s ruling, especially the attempt to designate Habba as a Special Attorney, which Brann had ruled against. What limits exist, the judges and Lowell both asked at various points, on Habba’s authority if she derives it in part from a unilateral and non-time-limited designation from the Attorney General?
“They have now constructed a way in which somebody never has to be nominated and confirmed, and can serve all the functions of the U.S. Attorney forever,” Lowell argued.
The judges also examined Brann’s determination that, because Habba wasn’t First Assistant U.S. Attorney (or even in the Justice Department) when the office first became vacant – which happened when Biden-era U.S. Attorney Philip Sellinger resigned in January – she was not eligible to become acting U.S. Attorney under the FVRA. That, then, led to the question of legislative intent: what did members of Congress intend when they wrote the text of the FVRA in 1998?
“It’s not the best or clearest statute I’ve ever read, I’ll grant you that,” Fisher said. “But it does say to me that Congress had a very specific intent: they wanted an experienced person to be that acting officer.”
(A bipartisan set of House members, some of whom were in office when both the original FVRA and the United States Attorney Independence Act of 2007 were signed into law, filed amicus briefs with the court asserting that it was, in fact, their legislative intent to prevent maneuvers precisely like the one the Trump administration is attempting with Habba.)
One other key part of the Habba saga, though it has largely stayed out of the courtroom, is the unusually political nature of Habba herself. A former personal attorney to Trump with no prosecutorial experience, Habba has been controversial from the moment she was named to the job, and actions like prosecuting Rep. LaMonica McIver (D-Newark) for alleged assault or saying she hoped her actions help turn “New Jersey red” have only deepened those divides.
Near the end of arguments today, Whitaker implied that the real motivation for the entire legal battle is to oust Habba specifically, a contention Smith pushed back against.
“Individuals timed out as acting U.S. Attorney under the FVRA [have] continued to exercise the functions and duties of that office by delegation, and no one seemed to think that was a problem until Alina Habba got appointed to that office,” Whitaker said.
“Nothing about this involves, in my view, Ms. Habba personally,” Smith responded. “This is about the statutes. This is about the separation of powers. This is about an important position within the firmament of our government. This is about process, which is what the system that we operate under every day is all about.”
