Judge Disqualifies Alina Habba as New Jersey U.S. Attorney
Second disqualification of an interim U.S. attorney.
Judge D. Michael Fisher of the U.S. Court of Appeals for the Third Circuit disqualified Alina Habba from her role as New Jersey’s top federal prosecutor.
Defendants in two criminal cases moved to disqualify Habba and dismiss their indictments.
The opinion is similar to the disqualification of Lindsey Halligan, which led to the dismissal of cases of former FBI Director James Comey and New York Attorney General Letitia James.
Fisher cited the Federal Vacancies Act (FVRA), which allows the president “to designate someone to perform the duties of specified offices in an acting or interim capacity.”
New Jersey U.S. Attorney Phillip Sellinger resigned on January 8. Attorney General Pam Bondi appointed John Giordano on March 3, but he resigned after three weeks.
Bondi then appointed Habba, who was sworn in on March 28.
Remember, the interim appointment only lasts 120 days.
President Donald Trump nominated Habba for the position in June, but the Senate has not acted on the nomination. This is known as the PAS process.
The administration took action when the deadline approached (emphasis mine):
As § 546’s 120-day deadline approached, the United States District Court for the District of New Jersey issued a standing order pursuant to 28 U.S.C. § 546(d) providing that Desiree Grace—the First Assistant U.S. Attorney at the time— would be Interim U.S. Attorney effective upon the expiration of Habba’s 120-day term under § 546.1 In response, the Department of Justice terminated Grace’s employment. Then, on July 24, the Trump administration took several steps: (1) the President withdrew Habba’s nomination for U.S. Attorney; (2) Habba resigned as Interim U.S. Attorney; (3) the Attorney General issued an order appointing Habba as “Special Attorney” to the Attorney General, accompanied by a letter authorizing Habba to conduct “any kind of legal proceedings .. . which United States Attorneys are authorized to conduct” pursuant to 28 U.S.C. § 515, App. 161–62, 165; and (4) in the same order, the Attorney General also designated Habba as First Assistant U.S. Attorney, which purported to mean that Habba automatically became Acting U.S. Attorney pursuant to the FVRA, 5 U.S.C. § 3345(a)(1). As a result of these moves, the Government contends that Habba is the Acting U.S. Attorney for the District of New Jersey.
I have a better idea. The Senate should get off its butt and confirm appointments.
A district court did not dismiss the indictments against the two criminals, but agreed that Habba should be disqualified.
The administration appealed.
The part I bolded above is vital because Fisher shot it down:
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. Rather, we agree with the District Court that “[t]he most natural reading” of subsection (a)(1) is that only the first assistant in place at the time of the vacancy automatically assumes acting status under the FVRA because it is the reading that “better harmonizes the various provisions in [the FVRA and § 546] and avoids the oddities that [the Government’s] interpretation would create.” Rep. of Sudan v. Harrison, 587 U.S. 1, 8, 15 (2019). Therefore, Habba is not eligible to serve as Acting U.S. Attorney under the FVRA’s first-assistant provision, 5 U.S.C. § 3345(a)(1), because she was not the First Assistant U.S. Attorney at the time the vacancy arose.
Another problem is that Trump nominated Habba to the role:
Even if the FVRA’s first assistant provision did allow a later-appointed first assistant automatically to ascend to the role of acting officer, Habba would still need to overcome the FVRA’s nomination bar. The FVRA provides that “a person may not serve as an acting officer for an office under this section, if . . . the President submits a nomination of such person to the Senate for appointment to such office.” 5 U.S.C. § 3345(b)(1).
The administration argued that the bar only applies to pending nominees.
Fisher said that the statute lacks any indication that “the bar lifts when a nomination is no longer pending.”
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Comments
This is all the Senates fault
And well planned.
Trump has got to find some ton Thune to squeeze him
Would. Ever happen in a Democratic administration
Does Trump look to the Barbizon for his pool of judicial appointments?
I looked that name up and I can’t figure out what it is you’re driving at. Please explain thank you.
A bit dated, since it’s now a condo, but in its day, the Barbizon Hotel for Women was the place for a good hot dish. I fondly recall the endless supply of 3rd runner up Miss Wisconsins staying there while pursuing acting lessons.
As portrayed in the TV sitcom BOSOM BUDDIES
That is an obscure reference if I’ve ever heard one. Isn’t that the show that Tom Hanks got his start on and also that guy that played a PBS producer on The Bob Newhart Show?
Leave Wisconsin alone !
Fur goodness sakes.
Maybe its time for the Trump WH to shift focus away from cleaning up the international messes created by the decades long collaboration between globalists and neocons policies of military adventurism and onto domestic policy issues with an emphasis to prioritize not just nominations for US Attorney and Judicial vacancies but on confirmation of the nominees.
With all due respect, there are over 440 Federal agencies that employ over 2 million people.
In that vast pool of resources, we can’t concurrently deal with domestic and international messes?
We can’t walk and chew gum at the same time?
Respectfully, I used the the caveat ‘…with emphasis to prioritize not just nominations for US.Attorney and Judicial vacancies bun on confirmation of the nominees’ for a reason.
There’s 93 US Attorney positions. Less than half are filled by a Senate Confirmed nominee of Trump.
There are currently 47 Judicial vacancies against only 12 nominees to fill those positions. Many of those vacancies without a nominee have existed for more than six months, some vacant since Jan of ’25 before Trump was inaugurated and a very few since before he was elected.
Apparently we can’t ‘walk and chew gum’ at least when it comes to making nominations for every vacancy and exerting political will/WH pressure on the Senate to move the nominations which have been made across the finish line to confirmation. If we could then these positions would at minimum all have nominees with a far higher number of completed confirmations.
Trump is pushing to fill the vacancies but it Senate Dems continue to pursue their block all Trump agenda there isn’t much he can do unless Thune blows up the filibuster
There is no filibuster on appointments.
Blowing up the filibuster, while irrelevant in the case of judicial nominees, would be disastrous the moment that Democrats win 51 seats in the Senate. If it hadn’t been for Sinema and Manchin, the Ds would have eliminated the filibuster during Biden’s administration. We would end up with the disaster that is the voting rights act, the Equal Rights Amendment and a host of “green new deal” things that would be far worse than the junk included in the Inflation Reduction Act and all the fringe leftist executive orders.
This is true.
No, they wouldn’t. They would have found the necessary votes to block it. They’re not stupid, and they already regret blowing up the filibuster for nominations. They don’t want to blow it up for legislation, even when they say they do.
Respectively,
He is not doing so. Not for the 47 Judicial vacancies. He has a grand total of 12 Judicial nominees pending, which means 35 Judicial vacancies do not have a Trump nominee, some of which have been vacant since before his inaugural and a handful before the ’24 election. Beyond these stark numbers are lack of nominees for US Attorney positions without a Trump nominated, Senate approved occupant.
We can’t argue we are ‘trying to fill vacancies’ if we don’t produce nominees to fill them.
Yes. Remember there is no filibuster on appointments. Harry Reid blew it up, and the Dems now regret that.
Babylon Bee
Trump’s Strategy Of Hiring Lawyers Based On Bust Size Not Working As Well As Anticipated
Clearly you are a jealous female 😉
I would expect Trump to send this to the Supreme Court. There is nothing in the Constitution that says the Senate has to approve the US Attorneys of the Executive Branch. This was added later on by Congress and the rule now has the Senators of the state get to decide if they want to approve the person for their state, but it is a killer for any Republican President trying to get his choices for Dem Senator run states.
Article 2, Section 2, para. 2: “He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”
The key phrase is “and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law:”. Yes, the Senate does have to approve the US Attorneys, as they are established by law and subject to this clause.
The Congress could designate such appointments to be done by the President alone or by the AG, but as we all understand, Congress won’t do that.
Since it is clear that the Senate will not approve any appointee who will prosecute prominent Democrats particularly those who orchestrated and participated in the 8 year long lawfare persecution of Trump there needs to be an alternate tactic.
Not sure what it is but the Trump needs a way to burst the bubble of immunity that protects the uniparty political class. They are and have been immune to the laws that apply to commoners for years and hopefully at least some of them will be held to account for their misdeeds.
No, Congress can’t designate such appointments to be done by the President alone or by the AG, even if it wanted to, because they are not inferior officers. A US Attorney is a superior officer, and thus can’t be appointed without the senate’s consent, and Congress can’t change that.
An argument would appear to be whether the ACTING position is inferior – loads of precedent for that. Trump was filling an acting position while waiting for the Senate to do their job
Congress has authorized the president to appoint acting USAs, but only for 120 days, after which the authority passes to the district courts. Congress could change that law to extend it to 150 days or 180 days, or it could authorize the president to make a second such appointment once the first one expires, but it hasn’t done so, and the Dems would presumably filibuster any attempt to amend the law.
Article 2, Section 2, para. 2: “He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”
Weird, I don’t see anything in there that would allow a State’s District Court Judges to appoint a US Attorney in the event of the Senate refusing to confirm the President’s nominee. But, that is exactly what this particular law requires – after the President gets 1 opportunity for a 120 day appointment of the current #2 to fill the vacancy.
How is this not a blatant violation of separation of powers? Judges should never have any say in who the administration’s prosecutor is, much less have the power to pick any candidate they like – with zero say from the President – and make that person the US Attorney for their State until such time as the Senate finally gets around to confirming the Presidents nominee (if ever).
Given that the Courts are now, and have long been, by far the most political of the three branches of government, and also given the fact that the “blue slip” garbage allows a mere 2 Senators to forever prevent the opposing Party’s President from getting even a single District Court judge confirmed in their State that they don’t approve of, this essentially allows those 2 opposing Party Senators to pick not only the Judges but also the federal prosecutors that will be in office in their State regardless of who the President is.
You quoted it yourself. “But the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”
The district court can’t appoint a USA, because that’s a superior officer, but Congress can and has authorized it to appoint an acting USA, which is an inferior office. It has the same power to authorize the court to make the second appointment as it does to authorize the president to make the first one.
And it’s not a state court that makes this appointment, it’s the federal district court. I don’t know where you got the idea that it was a state court.
Maybe, as Mark Kelly insists, Trump should declare the judges order unlawful or illegal and refuse to obey it
No, he literally can’t do that. Even if he wants to deliberately break the law, there’s simply nothing he can do about it. A US Attorney’s position depends completely on the courts. If the courts say this person is not a US Attorney, Trump can say she is one till he’s blue in the face but when she shows up in court to prosecute someone the courts will still say “Who are you?”
It’s to undermine anything President Trump does.
No matter who President Trump appoints isn’t going to go easy.
Just imagine the RINOs who will vote against her like Collins and the ice queen Murkowski yet the voted to confirm the moron Jackson to the SCOTUS!
The issue is Thune and the Turtle before him would not recess the Senate so President Trump could do recess appointments. This is the uniparty doing everything they can to hamstring President Trump. You can’t hate these clowns enough.
That is utter bullshit.
First of all, the senate can’t recess for more than three days without the House’s permission, so while the Ds controlled the House McConnell couldn’t do anything.
Second, supposing the House and Senate agreed on a 10-day recess, Trump still wouldn’t be able to make any appointments.
The last time the recess appointment clause came before SCOTUS, the four conservative justices held that a recess appointment can only be made during an intersession recess, not an intrasession one no matter how long it is, and also that the president can only fill vacancies that occurred during the recess, not those that occurred while the senate was in session.
Supposing that the house and senate agreed to a 10-day recess and Trump used it to make appointments, the Dems would immediately run back to SCOTUS, and it is almost certain that that 4-justice minority opinion would become the majority. There’s no reason any of the three conservatives who were in the minority last time would change their minds, it’s very likely that at least two of the three Trump appointees would join them because they agree with them, and it’s also likely that Sotomayor and Jackson would join them too because Trump. That would be a solid majority for the conservative position that recess appointments are almost never possible.
“I have a better idea. The Senate should get off its butt and confirm appointments.”
Two issues here:
1) Blue Slips. That’s the #1 reason she hasn’t been confirmed. >60 Senators would vote for her if her nomination made it out of committee, but it won’t as long as Grassley respects the archaic “blue slip” garbage.
So, 2 D Senators from NJ have effective veto power over all district court judge nominees and US attorney appointments in the State of NJ. Literally 2% of the Senate has a veto on 60+%.
And neither have given any actual reason why they are blocking her appointment.
Trump has repeatedly attacked Grassley for honoring the “blue slip” garbage. Particularly so since, in multiple previous administrations, it has NOT been honored.
2) The Senate R leadership is blocking their own President from making recess appointments by holding pro forma sessions for the sole purpose of making sure Trump never gets an opportunity to make recess appointments.
Given the D’s obstruction, blocking literally every appointment without even bothering to pretend that they have any actual objections to any particular nominee, this is insane.
Trump and Thune should meet and make a deal on this. That the Senate will go into an actual recess and allow Trump to make recess appointments, if he limits himself to whatever limits Thune wants to impose (like, no recess appointments above the District Court level, no recess appointments of anyone that Trump hadn’t already nominated at least a month in advance of the recess – so there’s no surprises, and maybe exclude a few individuals they have questions about).
This would allow Trump to recess appoint all of the bureaucrats, US Attorneys, and District Court judges that whose names the Senate has had for months now but are being blocked just for partisan politics by the D’s.
Note that neither Party ever engaged in such obstruction until the D’s started doing it at the start of Trump’s first term. And the R’s didn’t do the same to the D’s during Biden’s regime with the exception of Judicial appointments.
You’re right about the blue slips, but recess appointments are a fantasy. There is effectively no such thing, and won’t ever be such a thing any more. As I wrote just above, even supposing the house and senate agreed on a 10-day or a 20-day intrasession recess, if Trump used it to fill any vacancies, particularly vacancies that already existed before the recess, the Dems would take it back to SCOTUS, which would be almost 100% guaranteed to strike them down.
As a practical matter the conservative position on recess appointments is already law. Recess appointments may only be made during an intersession recess, and only for offices that became vacant during that recess.
How is Trump supposed to get folk confirmed when Democrats are deliberately obstructing? They’re setting precedent for Republicans should Democrats win power of course, but Democrats with the aid of the Democrat-Media Complex will scream Republicans are the problem and should compromise – basically the same as now. When in doubt – blame Republicans, or Trump, or everyone and everything not part of The Party.
The argument Trump can make is that the Constitution says “…with the advice and consent…” of the Senate. It doesn’t say anything about a 2/3rds majority except for treaties. A simple majority will suffice and that’s the road I’d go down in tandem with any other argument he makes. This absolute gridlock needs to stop.
Huh? Who said anything about 2/3? No one is requiring a 2/3 majority for appointments. I don’t understand where you’re getting that.