If Alina Habba’s appointment is illegal, so is much more of Trump’s DOJ takeover.
A line in the musical Hamilton claims, “Everything is legal in New Jersey.” This is not precisely true. At the moment, however, nobody seems to know who in the state is in charge of enforcing federal law.
Last Thursday, a judge ruled that Alina Habba, Donald Trump’s pick to head the U.S. Attorney’s Office in New Jersey, has been illegally leading the office since July 1. That doesn’t just cause problems for Habba going forward: If Habba was not legitimately in office, the prosecutions that took place under her are all now in question. The administration has appealed the ruling. “I am the pick of the president,” Habba insisted on Fox News. “I will serve this country.”
The chaos around Habba is a glimpse into the dubious methods by which Trump has bent the rules to stock his government with loyalists. Now those maneuvers have upended prosecutors’ work in New Jersey—and potentially around the country.
Typically, the president nominates U.S. attorneys for confirmation by the Senate, which gives the president’s choice a thumbs-up or -down. The statutes that allow temporary appointments are structured that way for a reason. As with all Senate-confirmed positions, the Senate’s constitutional power to advise and consent on U.S.-attorney nominations is meant as a check against the president selecting candidates whose only merit, as described in The Federalist Papers, is “of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”
But this is exactly what Trump finds appealing about appointees like Habba, one of his closer advisers. Trump originally selected Habba in late March under a statute that allows the president to select an interim U.S. attorney when the chief prosecutor’s office is vacant. Interim appointments expire after 120 days; from that point on, judges in the district may make their own selection. In June, the president officially nominated Habba to fill the position via the normal process. The Senate did nothing to move on Habba’s nomination, and on July 22—120 days since Trump announced that he had appointed Habba “effective immediately”—New Jersey judges selected a career prosecutor in the office, Desiree Grace, for the role instead.
Judges’ authority to make such picks had been previously uncontroversial, but the Trump administration exploded with rage. “When judges act like activists, they undermine confidence in our justice system,” scolded Deputy Attorney General Todd Blanche on X. The Justice Department devised a “solution” to slide Habba back into the job—a Rube Goldberg series of maneuvers, taking advantage of the tangle of authorities that governs temporary appointments. Grace, a registered Republican who previously had earned accolades for her aggressive prosecution of violent crime, was fired. Habba dropped her bid for the permanent role and was reappointed, not as interim U.S. attorney, but as a “special attorney” and the “first assistant” to the U.S. attorney, who did not exist—allowing Habba to step into that role under a different law, the Federal Vacancies Reform Act. Essentially, Habba became her own chief aide.
In his ruling last week, Judge Matthew Brann said that this scheme violated the Vacancies Reform Act. Among other problems with the reappointment, the judge held that the statute forbids slotting a first assistant into the top job if the assistant was appointed after the vacancy in question arose—which, in Habba’s case, is exactly what the Justice Department did.
