Appeals court rules Trump prosecutor appointment violates law

A federal appeals court ruled Monday that President Donald Trump unlawfully maneuvered to keep his former personal attorney, Alina Habba, as the top prosecutor in New Jersey.

In a unanimous decision, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit ruled against the extraordinary steps the Justice Department deployed to bypass Senate confirmation and keep Habba in the top position. The ruling is the first by an appeals court on the validity of Trump’s U.S. attorney appointments, several of which have been challenged nationwide.

The appeals court’s ruling upheld a lower court’s decision disqualifying Habba. The question of the legality of her appointment and whether it violates the Federal Vacancies Reform Act is likely to be settled by the Supreme Court.

“It is apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place,” D. Michael Fisher, who was appointed by President George W. Bush, wrote in the court’s opinion. “Its efforts to elevate its preferred candidate for U.S. Attorney for the District of New Jersey, Alina Habba, to the role of Acting U.S. Attorney demonstrate the difficulties it has faced — yet the citizens of New Jersey and the loyal employees in the U.S. Attorney’s Office deserve some clarity and stability.”

Judges L. Felipe Restrepo, appointed by President Barack Obama, and D. Brooks Smith, also appointed by Bush, were the other members of the appeals panel.

The decision Monday applies only to Habba’s appointment, but it could shape the fate of other interim U.S. attorneys kept in their posts through the same complex maneuvers used in New Jersey, including prosecutors in California, Arizona, New Mexico and New York.

A similar issue involving the appointment of Lindsey Halligan as U.S. attorney in the Eastern District of Virginia led last week to the dismissal of cases against former FBI director James B. Comey and New York Attorney General Letitia James.

By law, the attorney general may appoint a U.S. attorney on an interim basis for 120 days. If there is no Senate-confirmed nominee at that point, federal judges are empowered to appoint an acting replacement in their districts.

In most cases, judges opt to extend the tenure of the interim or acting person in the job. Roughly a dozen of Trump’s less headline-grabbing interim appointees have seen their terms extended.

In Habba’s case, however, New Jersey’s federal judges voted not to extend her term and appointed a veteran prosecutor‚ who had been serving as Habba’s chief deputy. Attorney General Pam Bondi responded by attacking the judges and firing the successor they appointed.

Bondi then installed Habba in the newly vacant chief deputy role. Because there was no one serving at that point as U.S. attorney, this meant Habba, as the office’s new No. 2, inherited command of the office on an “acting basis.”

Multiple defendants who faced federal charges in New Jersey sought to have their indictments dismissed because of what they argued was the illegality of Habba’s appointment.

The lower court judge and the appeals court panel agreed with the defendants on the question of Habba’s appointment but did not dismiss their cases.

Unlike the Comey and James prosecutions, in which Halligan took the highly unusual step of personally presenting the cases to a grand jury — the New Jersey cases all were handled by career prosecutors working under Habba’s supervision.

Defense attorneys praised the ruling.

“The court’s decision affirms that U.S. Attorney Alina Habba is unlawfully and invalidly serving as the chief federal law enforcement officer in New Jersey, marking the first time an appellate court has ruled that President Trump cannot usurp longstanding statutory and constitutional processes to insert whomever he wants in these positions,” Abbe Lowell, Gerry Krovatin and Norm Eisen, attorneys representing one of the defendants facing fraud charges, wrote in a statement Monday.

“We will continue to challenge President Trump’s unlawful appointments of purported U.S. Attorneys wherever appropriate,” they wrote.

The Senate has not moved to vote on Habba’s nomination since she was chosen. New Jersey’s senators, Democrats Cory Booker and Andy Kim, have opposed the nomination, saying that she has acted as a “partisan warrior” instead of a fair-minded arbiter of justice.

Habba had no prosecutorial experience before her appointment. She has represented Trump in multiple civil lawsuits, including a defamation suit brought by author E. Jean Carroll.

A federal appeals court last week upheld a lower court’s decision that Habba and Trump are liable for $1 million for filing frivolous lawsuits against Comey and Hillary Clinton.