A federal appellate court on Monday ruled against Alina Habba’s appointment as the head of the U.S. attorney’s office in New Jersey, another strike against the Trump administration’s push to install allies among the ranks of U.S. attorneys outside of the Senate confirmation process.
A three-judge panel from the U.S. Court of Appeals for the 3rd Circuit unanimously ruled the Trump administration’s series of personnel moves to put Habba in the role of acting U.S. attorney did not comply with laws regarding who can serve in office when there is a vacancy.
Habba is not eligible to serve as acting U.S. attorney under the Federal Vacancies Reform Act “because she was not the First Assistant U.S. Attorney at the time the vacancy arose,” the ruling stated.
“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,” the ruling stated.
The decision upheld a lower court ruling that disqualified Habba from participating in the prosecution of two criminal cases, with the defendants arguing that she was serving as acting U.S. attorney unlawfully.
Habba is one of several heads of U.S. attorney offices who have had their appointments challenged, after the Justice Department went forward with personnel maneuvers that critics say unlawfully lengthens the tenure of administration allies and sidesteps the Senate confirmation process for U.S. attorneys.
“It is apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place,” the 3rd Circuit wrote in the opinion.
Broadly, the Justice Department moves involve two federal laws that limit who can serve temporarily as U.S. attorney and for how long.
In the case of Habba, she was initially appointed as an interim U.S. attorney under a law known as Section 546 and had been nominated to be the Senate-confirmed U.S. attorney for the district.
That law states that an attorney general can appoint a U.S. attorney to fill a vacancy until either the Senate confirms a U.S. attorney for that district or for 120 days after that appointment. If that appointment expires, “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.”
As the time limit for that appointment approached, the U.S. District Court for the District of New Jersey issued a standing order saying Desiree Grace, who was serving as the first assistant U.S. attorney at the time, would take over as interim U.S. attorney when Habba’s 120-day term ended, according to the opinion.
The Justice Department fired Grace in response, according to the opinion. The Trump administration withdrew Habba’s nomination for U.S. attorney, Habba resigned as interim U.S. attorney, and the attorney general designated Habba as first assistant U.S. attorney, “which purported to mean that Habba automatically became Acting U.S. Attorney pursuant to the FVRA,” according to the opinion.
“Textually and structurally, within the context of the full statutory framework Congress has provided, the Government’s reading of the FVRA’s first assistant provision is not persuasive because it renders other FVRA and § 546 provisions mostly superfluous,” according to the opinion.
The ruling comes days after a federal judge dismissed the criminal charges against former FBI Director James B. Comey and New York Attorney General Letitia James, finding that the interim U.S. attorney who secured the indictments, Lindsey Halligan, was illegally appointed.
The Justice Department did not immediately respond to a request for comment on the decision.
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