Alina Habba, Trump’s former personal lawyer, is not legally serving as the acting US attorney for New Jersey, judge rules

By Kara Scannell, CNN

(CNN) — A federal judge on Thursday said President Donald Trump’s former personal lawyer Alina Habba is not legally serving as the acting US attorney for New Jersey, laying the groundwork for a potential review of the Trump administration’s method for installing some top prosecutors around the country.

“Faced with the question of whether Ms. Habba is lawfully performing the functions and duties of the office of the United States Attorney for the District of New Jersey, I conclude that she is not,” wrote Judge Matthew Brann of the Middle District of Pennsylvania, who was transferred two cases challenging her authority.

“And because she is not currently qualified to exercise the functions and duties of the office in an acting capacity, she must be disqualified from participating in any ongoing cases,” Brann, an appointee of former President Barack Obama, added in his 77-page opinion.

The ruling could have far-reaching consequences beyond US attorneys, legal experts say. The Justice Department plans to appeal, an agency official said.

Other US attorneys beyond Habba are serving in similar circumstances. In July, John Sarcone, who is now serving as the acting US attorney in the Northern District of New York, failed to receive an indefinite extension of his interim status from federal judges.

The Trump administration has found other loopholes for US attorneys who have struggled to receive interim status extensions. Bilal Essayli in the District of Central California, and Sigal Chattah in the District of Nevada, were both appointed as acting US attorneys before federal judges could reject an extension of their interim status.

Habba’s authority as the top federal law enforcement officer in the state was challenged by defendants in two criminal cases who argued her recent appointment as acting US attorney is invalid because it violates federal law.

Amid the uncertainty of who is in charge, judges cancelled plea hearings and sentencings, and grand juries have not returned any indictments in recent weeks.

Challenged by three defendants

Defendants Julien Giraud Jr. and Julien Giraud III moved to dismiss their indictment on drug-related charges, arguing Habba’s appointment was illegal. Another defendant, Cesar Pina, who is accused of defrauding investors, also sought to dismiss his indictment, arguing it was handed up after Habba’s term expired.

The judge’s opinion “underscores that this Administration cannot circumvent the congressionally mandated process for confirming U.S. Attorney appointments,” Pina’s attorneys Abbe Lowell and Gerald Krovatin said Thursday.

Under federal law, interim US attorneys can only hold the position for 120 days, after which district judges can appoint a temporary US attorney if the administration’s choice is not confirmed by the Senate. When there is no US attorney, under the Federal Vacancies Reform Act, the first assistant by default becomes the acting US attorney. In this case, the judges declined to appoint Habba and instead went with the first assistant, who was promptly fired by the Justice Department.

Anne Joseph O’Connell, a professor at Stanford Law School who studies administrative law, said the ruling could have a broad impact on the administration.

“It opens up a challenge to any acting official serving under Federal Vacancies Reform Act who was named first assistant to Senate-confirmed slot after the last confirmed person departed. “That’s acting US attorneys but it’s not limited to US attorneys,” she said.

“Modern agencies run on delegation in the face of a dysfunctional appointments process,” O’Connell added. “If only the head of the department can do these vacant lower level Senate-confirmed jobs, agencies will grind to a halt.”

Democrats have placed holds on Trump’s picks for US attorneys preventing all of them from a full Senate vote. The terms of several of Trump’s interim choices are expiring and the Trump administration has extended some of their terms using the FVRA. Habba’s is the only one, so far, whose appointment has been challenged.

The Justice Department argued the president has broad authority to place whoever he wants into the top federal job.

“The President has made clear that he will not permit anyone other than Ms. Habba to fill the current vacancy in the office of the United States Attorney on a temporary basis. That is his prerogative; this Court cannot second-guess it,” prosecutors wrote in a court filing.

“It is important that a Department of Justice component is overseen by someone who has the backing of the Executive Branch, and that the USAO can continue with its important work even when there is no Senate-confirmed, interim, or acting U.S. Attorney,” prosecutors wrote in another filing.

In his opinion Thursday, Brann also appeared to nod to the Justice Department’s hostile stance toward the New Jersey district judges who selected a career prosecutor over Habba.

“A government operating by handshake and mutual understanding may go along swimmingly, but only for so long as everyone is willing to play by the rules. Those rules are the result of good-faith compromise – a concession by one branch is premised on the understanding that another branch will not abuse the benefit,” the judge wrote. “So even if a practice of making exceptions to the letter of the law exists, it is likely cabined by other practice based rules that limit the scope of those exceptions. When one side decides that the practice-based limits no longer apply, what then?”

At a hearing last week in Williamsport, Pennsylvania, Brann recognized that the Justice Department has limited means to pursue an appeal at this stage in a case, but he suggested he would tee up the decision for appellate review.

“I think we may be getting on the same page to tee this up, because I have a feeling …. that someone is going to be unsatisfied with my ruling,” the judge said.

“I think it’s very likely that Ms. Habba is going to end up, at some point down the road, as the United States Attorney for the District of New Jersey. I don’t know that. I don’t have a crystal ball. But I think that’s the case,” the judge added, according to a transcript of the hearing.

CNN’s Casey Gannon contributed to this report.

This story has been updated with additional developments.

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