Former Trump personal lawyer Alina Habba is unlawfully serving as the US attorney for New Jersey, appeals court says

By Kara Scannell, CNN

(CNN) — A federal appeals court on Monday found Alina Habba, President Donald Trump’s former personal attorney, is serving unlawfully as US attorney for New Jersey, dealing a legal blow to the Trump administration that could have far-reaching consequences on other appointments across the country.

A panel of three appellate judges with 3rd US Circuit Court of Appeals upheld a lower court’s finding that the administration violated the law when it used of a series of maneuvers to install Habba in the position after failing to win Senate support.

“Under the Government’s delegation theory, Habba may avoid the gauntlet of presidential appointment and Senate confirmation and serve as the de facto U.S. Attorney indefinitely,” the unanimous panel wrote. “This view is so broad that it bypasses the constitutional (appointment and Senate confirmation) process entirely.”

The ruling could impact what happens in several key jurisdictions where the Trump administration doesn’t have Senate-confirmed US attorneys, including the Los Angeles and Las Vegas areas.

Last week, a district court threw out two indictments against former FBI Director James Comey and New York Attorney General Letitia James after finding Lindsey Halligan, the US attorney for the Eastern District of Virginia, was serving unlawfully.

While the 3rd Circuit’s decisions cover New Jersey, Pennsylvania, Delaware and the US Virgin Islands, appeals court cases are often given deference in other parts of the country especially when they are dealing with novel legal issues.

It isn’t clear who will lead the US attorney’s office following the court’s ruling. The Justice Department could appeal the case further by asking the full bench of 3rd Circuit judges to rehear the argument or go directly to the US Supreme Court.

CNN has reached out to the Justice Department for comment.

An attorney for Julien Giraud, Jr., one of the three defendants who challenged Habba’s eligibility, praised the ruling.

“The panel issued a clear and carefully reasoned decision that recognizes the extraordinary power vested in US attorneys and reinforces the limits Congress has set on who may occupy those positions,” said Thomas Mirigliano. “We appreciate the court’s thoughtful approach and the clarity it brings to this important issue.”

In the districts where US attorneys were found to be serving unlawfully, criminal cases have mostly continued, although some judges have postponed trials or sentencings. To date, except in the cases involving Halligan, judges have not dismissed indictments of the defendants who brought – and won – the challenges because they found other prosecutors were involved.

Trump’s lawyers appealed the ruling by Judge Matthew Brann, saying he erred when he found that Habba is not serving legally because she was not the first assistant US attorney when the US attorney vacancy arose. They also argued Habba should be able to act as US attorney on authority delegated to her as a special attorney from Attorney General Pam Bondi.

Trump named Habba interim US attorney for New Jersey earlier this year. As the 120-day clock for interim appointments was set to expire, and it was clear the district court judges were not going to name her US attorney, Habba resigned. Bondi named Habba special attorney and designated her as the first assistant US attorney. She then delegated to Habba the authority of the US attorney.

The three-judge panel was made up of two appointees of former President George W. Bush – Judges Michael Fisher, D. Brooks Smith – and former President Barack Obama-appointee Felipe Restrepo.

This story has been updated with additional details.

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