Dem
47
GOP
53
Alina Habba is still the Acting U.S. Attorney for New Jersey, at least for now. Habba was installed as the "interim" U.S. Attorney on March 28, and was also formally nominated for the post for Senate confirmation. Both New Jersey Senators objected to her nomination, so it did not move forward. Under the Federal Vacancies Reform Act (FVRA), Habba could only serve in an interim capacity for 120 days, which meant that her term ended July 26, 2025. After that time, lacking Senate confirmation, it was up to the district court judges in that district to determine if she should remain in the post or if someone else should have the job.
The New Jersey district court judges did not find Habba to be suited for the role of U.S. Attorney and on July 22, appointed her First Assistant, Desiree Grace, to the position. To be clear, the judges were following the timelines set by the FVRA in selecting Grace, whom Habba herself had put into the first assistant position.
Trump administration officials were not pleased with that appointment, to put it mildly. "Attorney General" Pam Bondi, along with Trump's personal henchman, er, consigliere, er "Deputy Attorney General" Todd Blanche immediately fired Grace (who didn't leave willingly and endeavored to stay in her post). They then undertook a series of maneuvers to get around the FVRA and keep Habba as U.S. Attorney. As it turns out, the district judges acted a little early; the 120 days weren't up until 11:59 on July 25, so Bondi and Blanche had three days to find a way to break the law—pshaw, give them something hard to do.
Here's what they came up with. On July 24, they withdrew Habba's nomination to be U.S. Attorney and had Habba resign as interim U.S. attorney. Next, Bondi appointed Habba as a "Special Attorney to the Attorney General" and purported to give her all the powers of a U.S. Attorney. Then, Bondi appointed Habba to the now-vacant First Assistant position left open by the firing of Grace. Finally, Habba was then automatically elevated to the position of Acting U.S. Attorney, which was now vacant thanks to her resignation 5 minutes before coupled with the termination of Grace. Pretty cute, eh?
There's only one problem. None of this is legal, and it took about a nanosecond before criminal defendants started to challenge their prosecutions in New Jersey on the grounds that the U.S. Attorney is illegitimate and has no authority to bring criminal charges against anyone. And you thought The Purge was just a movie.
And now two defendants, whose trials had been scheduled to start in August, have a hearing before Judge Matthew Brann, who is the Chief U.S. District Judge for the Middle District of Pennsylvania. That is because the New Jersey district judges are conflicted out, as they picked someone other than Habba to serve as the U.S. Attorney. Judge Brann has already denied the defendants' motion to dismiss their charges, since they were brought in 2024 under the former U.S. Attorney, a Joe Biden appointee, who, unlike Habba, was qualified for the post, duly nominated and confirmed by the Senate.
But even though the charges remain pending, the defendants may be entitled to bar Habba from prosecuting their cases and to prohibit any attorneys in her office from acting at her direction. (From where we sit, their case probably gets stronger the more involved Habba is in the prosecution, but who are we to question their strategy.) The next step is for the Court to determine whether Habba is barred from serving as the Acting U.S. Attorney. If she is, then she can't be involved in the prosecution of any cases out of her office, and she can't supervise the attorneys on those cases. The Court said that it will stop short of imposing an "officewide disqualification" but could disqualify certain Assistant U.S. Attorneys who bring cases under Habba's authority. The Court also said that prosecutions can continue to move forward so long as it is clear that the assigned attorneys are working under Bondi's authority and not Habba's. Oral argument is scheduled for August 15.
Readers may recall that Bondi and Trump pulled a similar maneuver in the Northern District of New York where the interim U.S. Attorney, John Sarcone, was nearing the end of his 120-day period. After the district judges there rejected him for the post, Bondi also made him a Special Attorney to the Attorney General. The difference there is that Sarcone had been acting not only as the U.S. Attorney but also as the First Assistant, so there was no Desiree Grace equivalent for the judges to put into the post. But if Judge Brann finds that Habba's designation as Special Attorney to the AG is ultra vires (a.k.a., made up and illegal), that calls into question Sarcone's appointment as well. Stay tuned. (L)