By Dana DiFilippo
Reprinted with permission
New Jersey Monitor
President Donald Trump suffered another loss Monday in his ongoing fight to make his former personal lawyer the top federal prosecutor in New Jersey, with a federal appellate panel upholding a lower court ruling that disqualified Alina Habba from the post.
U.S. Third Circuit Judge D. Michael Fisher, writing for a unanimous three-judge panel, said Habba’s continued service in a job she first took in March violates the Federal Vacancies Reform Act and undercuts constitutional protections meant to ensure the three branches of government remain separate but equal.
Fisher barred Habba from the job, affirming U.S. District Judge Matthew Brann’s August ruling, which Brann had put on hold pending appeal. This is a fight the Trump administration has been waging elsewhere in the country, including Virginia and Nevada, so Monday’s precedential ruling promises far-ranging impact.
Fisher noted that the Senate did not act to confirm Habba within the 120 days the Preserving United States Attorney Independence Act requires, triggering a provision in the 2007 law that authorizes federal judges to appoint an interim replacement if the clock runs out without Senate action.
When New Jersey’s federal judges appointed Desiree Leigh Grace in July instead of Habba, Trump administration officials fired her and resorted to a string of maneuvers to keep Habba in the job. Those maneuvers served to “sidestep” the Federal Vacancies Reform Act and statutory requirements reflecting Congress’s intent for someone with “a breadth of experience to properly lead the office,” Fisher wrote.
“It is apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place,” Fisher wrote. “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.”
Fisher’s ruling, which came after both sides argued the case in October in Philadelphia, did not answer the question of who is the U.S. attorney in New Jersey, with Habba now disqualified. Spokespeople in the New Jersey U.S. Attorney’s office and the Department of Justice did not respond to requests for comment.
Others celebrated the decision.
Abbe David Lowell, Gerald Krovatin, and Norm Eisen, three of the attorneys who had challenged Habba’s authority, vowed to continue challenging “President Trump’s unlawful appointments of purported U.S. Attorneys wherever appropriate.”
“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 appeals court has ruled that President Trump cannot usurp longstanding statutory and constitutional processes to insert whomever he wants in these positions,” the attorneys wrote in a statement.
Rep. Frank Pallone Jr. (D-6) agreed that Monday’s ruling “reinforces the checks and balances that keep politics out of our justice system.” Pallone helped pass the Preserving United States Attorney Independence Act and joined an October brief urging the appellate judges to reject Habba.
“The law is simple: U.S. Attorneys must answer to the Constitution, not to political pressure from the White House. With this decision the Third Circuit has made it clear that Alina Habba was never the Acting U.S. Attorney. The Trump Administration broke the law when it tried to reinstall her anyway,” Pallone said in a statement. “Habba’s illegal appointment caused real problems in New Jersey — from delayed trials to confusion in our federal courts. I joined this brief to protect the law we wrote and to make sure New Jersey gets a U.S. Attorney chosen through a lawful process.”
The panel that issued Monday’s decision includes two Bush appointees — Fisher and Judge D. Brooks Smith, who are both senior judges. The third judge on the panel, L. Felipe Restrepo, is an Obama appointee.
Observers expect the case could end up before the U.S. Supreme Court.
