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.”
[Featured image via YouTube]
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